UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE   CODE 


OP 


CIVIL  PROCEDURE. 


THH 

CODE 

OF 

CIVIL    PROCEDURE 

OF  THE) 

STATE    OF   CALIFORNIA, 

ADOPTED   MARCH   U,   1872,    AND    AMENDED    UP  TO 
AND   INCL,UDING   190B. 

WITH 

STATUTORY     HISTORY     AND     CITATION      DIGEST      UP     TO     AND 

INCLUDING     VOLUME     147     OF    CALIPOKNIA 

RKFUKTS. 

EDITED  BY 

JAMES    H.    DEERING, 

Of   the    Ban   Francisco   Bar. 
STATUTORY  HISTORY  AND   CITATION  DIOHST  BT 

WALTER   S    BRANN, 

Of  the  San  Francisco  Bar. 
CONSOLIDATED     AND     EDITED    JUNE    1,     1306,     BT 

R    M.  SIMS, 

Of  the  San  BYanclsco  Bar. 
SAN     FRANCISCO: 

BANCROFT  -  WHITNEY    COMPANY, 

Law    Publishers    and    Law    Booksellers. 

1906. 


J 


Copyright    1006. 
BANCROFT- WHITNEY    CO. 


SAN    FBANCTRCO! 

THE    FILMER    BROTHERS     ELECTROTYPE    CO., 

Typographers    ami    Stereotypera. 

1906. 


CODE  OF  CIVIL  PROCEDUUE. 


IN   FOUR   PARTS. 


PRELIMINARY   PROVISIONS,    §§    2-S2. 
Part  I.    Of  Courts  of  Justice.     §§  33-304. 
II.    Of  Civil  Actions.     §§  307-1059. 

III.  Of  Special  Proceedings  of  a  Ciyil  Nature.    SS  1063- 

1822. 

IV.  Of  Evidence.     §§  1823-2104. 


SUMMARY  OF  CONTENTS. 


PART   I.— COURTS   OF   JUSTICE. 

Preliminary  Provisions.     §§  2-32. 

Title  I.     Courts   of   Justice — Their    Organization,   Jurisdic- 
tion, and  Terms.     §§  33-153. 
n.    Judicial  Officers.     §§  156-187. 

III.  Persons   Invested   with  Judicial   Powers.     §§    190- 

259. 

IV.  Ministerial  Officers  of  Courts  of  Justice.     §§  262- 

274. 
V.    Persoas    Invested   with     Ministerial    Powers.    §9 
275-30i. 

PART  II.— OF  CIVIL  ACTIONS. 

Title  I.  Form   of   Civil   Actions.     §§    307-309. 

II.  Time  of  Commencing  Civil   Actions.     §§   312-363. 

III.  Parties  to  Civil  Actions.     §§  367-390. 

IV.  Place  of  Trial  of  Civil  Actions.     §§   392-400. 
V.  Manner  of  Commencing  Suit     §§  405-41^. 

VI.     Pleadings  in  Civil  Actions.     §§   420  476. 

VII.    Provisional   Remedies    in    Civil   Actions.     §§    478- 
574. 

Vni.     Trial    and    Judgment    in    Civil    Actions.     §§   577- 
680 1^. 

IX.    Execution  of  the  Judgment  in  Civil  Actions.     §§ 
681-721. 

X.  Actions   in   Particular   Cases.     §§    726-827. 

XI.  Proceedings  in  Justices'  Courts.     §§   832-926. 

XII.  Proceedings  in   Police  Courts.     §§   929-933. 

XIII.  Appeals    in    Civil   Actions.     §§    936-980. 

XIV.  Miscellaneous  Provisions,     §§   989-1059. 

O) 


%  SUMMARY    OF    CONTENTS. 

PART    III.— SPECIAL    PROCEEDINGS. 

Preliminary  Provisions.     s§    1363-1064. 

Title  I.     Writs     of     Mandate,     Fts-»1ew,    aad    Prohibition. 
§§    1067-1110. 

H.  Contesting  Elections.     |s   1111-1127. 

in.  Summary  Proceedings.     5^  11^2^1179. 

IV.  Enforcement  of  Liens.     5§  113^1207. 

V.  Contempt     §§   1209-1222. 

VI.    Voluntary  Dissolution  of    Corporations.    §§  1227- 
1234. 

VII.  EJmlnent  Domain.     §§   1237-1264. 

VIII.  E&cheated  Estates.     §§  1269-1272. 

IX.  Change  of  Names.     §§   1275-1279. 

X.  Arbitration.     §§  1281-1290. 

XL  Proceedings   in   Probate   Courts.     §§    1294-1810. 

Xn.  Sole   Traders.     §§    1811-182L 

XIXL  Proceedinss  in  Insolvency.    §S  1822. 

PART  rV.— OF  EVIDENCE. 

General  Definitions  and  Divisions.     §§  1823-1839. 

Title  I.  General  Principles  of  Evidence.     §§  1844-1870. 

II.  Kinds  and   Degrees  of  Evidence.     §§   1875-1978. 

III.  Production   of   Evidence.     §§    1981-2054. 

IV.  Effect  of  Evidence.     §§  2061. 

V.     Rights  and   Duties  of  Witnesses.     §§   2064-2070. 

VI.     Evidence  in  Particular  Cases  and  General  Provi- 
sions.    S§  2074-2104. 


CORRESPONDING  SECTIONS 

OF  THE 

PEACTICE  ACT,   PKOBATE   ACT 

AND 

Code  of  Civil  Procedure. 


Practice  Act.    Code  C.  P.  Practice  Act.    Code  C.  P. 

§   1 §  307  §  32 §  414 

§   2 §  308  §  33  §  415 

§   3 §  309  §  34 §  415 

§   4  §  367  §  35  §  416 

§   G  §  .368  §  36  §  420 

§   6  §  369  §  37  §  421 

§   7  §  370  §  38  §  422 

§   8 §  371  §  39  §  426 

§   9  §  372  §  40  §  430 

§  10  §  373  §  41  §  431 

§  11  §  376  §  42  §  431 

§  12  §  378  §  43  §  432 

§  13 §  379  §'44  §  433 

§  14  §  382  §  45  §  434 

§  15  §  383  §  46  §  437 

§  16  §  385  §  47  §  438 

§  17  §  3S9  §  48  §  440 

§  18  §  392  §  49  §  447 

§  19  §  393  §  50 §  433-4 

§  20 §  395  §  50  §  453 

§  21  §  397  §  51  §  446 

§  22  §  405  §  52 §  446 

§  23  §  40C-407  §  53  §  447 

§  24  §  407  §  54  §  448-449 

§  25 §  407  §  55  §  446 

§  26  §  407  §  56  §  454 

§  27  §409  §  57  §  453 

§  28  §  410  §  58 §  455 

§  29  §  411  §  59  §  456 

§  30  §  412  §  60  §  457 

§  31  §  413  §  61  §  459 


10 


COaRESPONDINQ    SECTIONS, 


Practice  Act 


Code  C.  P,   Practice  Act. 


Code  C.  P. 


S  62 S  450 

i    63 §  461 

§  64  .........  §  427 

I  65 §  462 

§  66 I  463 

8  67 §  464-472 

§  68 ,..  §  473 

§  69 :.  §  474 

§  70 §  452 

§  71 §  475 

S  72 §  478 

§  73 §  479 

§  74 §  480 

$  75 §  481 

§  76 §  482 

S  77 §  483 

S  78 §  484 

§  79 §  485 

§  80 §  486 

§  81 §  487 

§  82  .,-,. §  488 

§  83 §  489 

§  84 §  490 

S  85 §  491 

§  86 §  492 

§  87 §  493 

S  88 §  494 

§  89 §  495 

§  90 §  496 

§  91 §  497 

§  92 §  498 

§  93 §  499 

$  94 §  500 

§  95 §  501 

5  96 §  502 

i    97 §  503 

§  98 §  504 

§  99 S  509 

8  100 §  510 

8  101 §  511 

6  102 8  512 

8  103 §  513 

8  104 §  514 

8  105 §  515 

8  106 §  516 

8  107 8  517 


8  108 §  518 

§109 8  519 

§110 8  520 

8  111 8  625 

§  112 8  526 

§  113 8  527 

I  114 8  523 

§  115 8  529 

§  116  ....;....  §  530 

§  117 §  531 

§118 §  532 

§119 §  533 

§120 §  537 

§121 8  538 

§  122 8  539 

§  123 §  540 

§124 §  541 

§  125  §  542 

§  126  §  543 

§  127 §  544 

§  128  §  545 

§  129  §  546 

§  130 §  547 

§  131  §  549 

§  132 §  550 

§  133 §  551 

§  134 §  552 

§  135 §  553 

§  136 §  554 

§  137 §  555 

§  138 §  556 

§  139 §  557 

§  140 §  558 

I  141  §  659 

§  142 8  572 

§  143 §  564-569 

§  144 8  577 

§  145  §  578 

§  146 8  579 

8  147  §  580 

§  148 8  581 

§  149 §  582 

§  150 §  585 

§  151  §  588 

§  152  §  589 

8  153  §  590 


COaRESPONDINO     SECTIONS. 


11 


Practice  Act         Code  C.  P.      Practice  Act         Code  C.  P. 


§154 §  591 

§  155  §  592 

§156 §  593 

§157 §  594 

§158 §  595 

§159 §  600 

6  160 §  604 

§161- §  601 

§162 §  6oa 

§163 §  603 

§  164  ..V §  615 

§165 §  608 

§166 '.8  613 

§167 §  612 

8  168 §  614 

§169 §  616 

§  170 §  617 

§171 §  618 

§  172 §  619 

5  173 §  618 

5  174 §  624 

8  175 §  625 

§176 §  625 

§177 §  627 

§178 §  628 

§  179 §  631 

§180 §  633 

§181 §  636 

§182 §  638 

§183 §  639 

§184 §  640 

§185 §  641 

§186 §  642 

§  187 §  643-645 

§188 §  648 

§  189 §  649-652 

§  190 §  648 

§  191 §  647 

§192 §  656 

§  193 §  657 

§194 ^...   8  661 

§  195 §  661 

§196 §  661 

§  197 §  664 

§198 §  665 

§  199 §  666 


§  200 i  -667' 

§201 8  668 

8  202 §  669 

8  203 §  670 

§  204 8  671 

§205 §  672 

§  206  ...; §  673 

§207 §  674 

8  208 8  675 

§209 8  681 

§210 §  682 

§  211 4..  Canceled 

§  212 §  683' 

§213 §  684 

§214 §  685 

§215 .-...§  686 

§216 §  687 

§217 §  688 

§218 . §  689 

§219 §  690 

§220 §  691 

§221 §  692 

§  222 §'  693 

§223 §  694 

§224 §  695 

§225 §  698 

§226  §  697 

§  227   .'. 8  698 

8  228 §  699 

§229 §  700 

§230 §  701 

§231 8  702 

§232 §  703 

8  233 §  704 

§234  §  705 

§  235   §  (06 

§236 §  707 

§237 §  708 

§238 §  714 

§239 §  715 

§240  §  716 

§241 §  717 

§242 §  718 

§243  §  719 

§244 §  720 

§  245  §  721 


12  CORRESPONDING  SECTIONS. 

Practice  Act        Coda  G.  ?.      Practice  Act        Code  C.  P. 

ft  246 §  m  §292 ft  780 

I  247 §  727  §293 §  781 

J  248 g  728  §294 §  782 

§24^ §  731  §295 §  7^3 

§  250 §  733  §  296 §  784 

§251 §  732  §297 §  785 

§252 §  734  §298 §  786 

8  253 §  735  §299 §  78f 

§  254 §  733  §  300 §  783 

8  255 §  739  §  301   §  789 

§256 §  740  §302 8  790 

§  257 §  741  §  303 §  791 

§258... §  742  §804 §  792 

8  259 §  743  §805.... §  793 

260 8  744  8  306 §  794 


I 


261 8  745  §307 §  795 

262..* 8  748  §308  §  798 

8  263 8  747  §309 ..8  797 

8  264 8  752  §310....- §  803 

1265 8  753-  §311 §  804 

8  266 6  754  8  312 6  805 

8  267 8  755  §313 §  808 

268 §  756  6  314 8  807 

269 §  757  8  315 8  808 

8  270  §  768  8  816 8  809 

8  271  8  759  §317 §  813 

8  272  §  760  §  318 8  814 

8  273  §  761  §819. 8  815 

8  274 8  762  §  S20 8  816 

8  275  8  783  §321 §  817 

8  278 8  764  §822 §  818 

8  277 8  765  §823., §  819 

8  278  8  766  §324 §  820 

8  279 8  767  8  325 , §  821 

280, 8  768  8  326 6  822 

281  .r... 8  769  8  327  ;...,....  8  823 

282  ...........  8  770  8  328 8  824 

8  283  ...... .i.  9  771  8  329  6  825 

8  284 , 8  772  8  330 8  828 

8  2F5....^ 8  773  §331 8  827 

8  285 .....8  774  8  332 .,  §  827 

8  2C7 §  775  8  333 §  936 

8  288 8  77S  8  334 §  937 

8  2S9  8  777  §335  8  938 

8  2S0  ....;....  8  778  §  3S6  8  S39 

8  291  §  779  §  S37  8  940 


I 


CORRE«:poNDINO  SECTIQNS. 


18 


Practice  Act        Code  C.  P.      Practice,  Act        Code  0.  P. 


(  838 

fi  339 

§  340 Appeals 

§  341 t§  935-^)69 

§  342- 

?  343 , 

%  344 ,. 

§  845 §     956' 

%  346  .........  ft    950-954 

%  847  .......*.,  §     963 

fi  848 §     941 

f  849  ..> •..  %    943 

%  350 I    943 

§  351. §     944 

«  852 §     945 

%  353 §     94$ 

5354 §     947 

§  355 §     94$ 

§  35G S     949 

S  357 

%  358  .., §    958 

§  359 §     963 

%  S60 %     941 

%  361  , 8     941 

§362 §     841 

§  363 Repealed. 

§  364 <..  Repealed. 

§365  .........  Repealed. 

8  366 Repealed. 

§367 §     9S0 

§  368 §     989 

fi  369 fi     990 

§  870 §     991 

I  871 §     992 

§  372 §     993 

§  873 §     994 

8  374 §  1133 

8  875 8  1133 

8  376 §  1134 

5  877 6  1138 

6  378 %  1139 

fi  379 §  1140 

%  880 8  1281 

8  881 §  1282 

«  5g2  .^. §  1283 

I  883 %  12S4 


fi  884 ,  fi  1285 

8  885 8  1289 

8  38^ 8  1287 

§  387 81288 

§  888 %  1289' 

8  389 ,.♦  8  i^aa 

fi  390 ,...  fi     997 

%  891 fi  1879 

§  392 6  1879 

8  393  Repealed"  1870 

8  894     ,....,..  8  1880 

I  895 8  1S8V 

i39S 8  188r 

6  897 8  1881 

%  398  , ►. .  8  1881« 

fi  399  ...* 8  18»i 

§  -400 8  18&» 

fi  401 §  1884 

8  402 *.  8  1985 

8  402 fi  1989 

§  403 8  19S3 

8  404 8  1987 

8  405 8  1988 

8  406 8  1990 

8  407  > >  8  2064 

8  408  ....,..,-,  I  2065 

6  409  ....w...  §  1991 

6  410 %  1993 

6  411 8  1993 

6  412 8  1995 

%  413 •§  1993 

8  414 8  1997 

§  415 .8  2065 

§'  416 »....  §  2068-9 

%  417  

fi  418 

8  419 Repealed. 

§  420. 8§  '63,701 

8  421- 

•8  422 

8  423 .,... 

8  424 S  2013 

8  425 §  2013 

8  426 8  2014 

8  427  8  2015 

I  428 fi  2021 


14 


CORRESPONDING  SECTIONS. 


Practice  Act, 


Code  C.  P.   Practice  Act. 


Code  C.  P. 


§  429  '. §  2031 

§  430 §  2032 

§  431  §  2034 

§  432  §  2020 

§  433  §  2024 

§  434 §  2025 

§  435  §  2026 

§  436 §  2027 

§  437 §  2083 

§  438 §  2084 

§  439 §  2085 

§  440 §  2086 

§  441  §  2087 

§  442 §  2088 

§  443 §,2093 

§  444 §  2096 

§  445 §  2097 

§  446 §  1000 

§  447 §  1855 

§  448 §  1982 

§  449 §  1905 

§  450 §  1905-22 

§  451  §  1906 

§  452 §  1907 

§  453 §  1900 

§  454  ...' §  1930-31 

§  455 §  1067 

§  456 §  1068  ■ 

§  457 §  1069 

§  458 §  1070 

§  459 §  1071 

§  460 §  1072 

§  461 >...  §  1073 

§  462 §  1074 

§  463 §  1075 

§  464 §  1076 

§  465 §  1077 

§  466 §  1084 

§  467 §  1085 

§  408 §  1086 

§  469  §  1087 

§  470  §  1088 

§  471  §  1089 

§  472  §  1090 

§  473  8  1091 

§  474 $  1092 


§  475 §  1093 

§  476  §  1094 

§  477 ■§  1095 

§  478 §  1096 

§  479 §  1097 

§  480 §  1209 

§  481 §  1211 

§  482 §  1212 

§  483  §  1213 

§  484 §  1214 

§  485 §  1215 

§  486 §  1216 

§  487 §  1217 

§  488 §  1218 

§  489 §  1219 

§  491 §  1220 

§  492 §  1221 

§  493  §  1222 

§  494 §  1021 

§  495 §  1022 

§  496 §  1023 

§  497 §  1024 

§  498  ......  §  1025 

§  499  .'. §  1026 

§  500 §  1027 

§  501  Repl'd  1855.  250 
§  502  Repl'd  1855,  250 
§  503  Repl'd  1855,  250 

§  504 §  1028 

§  505 §  1029 

§  506 §  1030 

§  507 §  1031 

§  508 §  1032 

§  509  Canceled, 

§  510 §  1033 

§  511 §  1035 

§  512 §  1036 

§  513 §  1057 

§  514 §  1037 

§  515 §  1003 

§  516 §  1004 

§  517  §  1005 

§  518 §  1006, 

§  519  §  1010-16 

§  520  §  1011 

§  521  §  1012 


CORRESPONDING  SECTlOWa. 


IS 


Vractlce  Act    Code  C.  P.   Practice  Act    Code  C.  P. 


§  622 §  iOi3 

(623 §  1014 

i  624 §  1015 

e  525 §  1047 

8  526 §  1048 

§  527 §  lC-50 

§528 §  1052 

§629 §  1053 

§  530 §  1054 

§  531 §  1043 

§  5S2 §  361 

§  534  ..." §  842 

§535 §  832 

§536 §  889 

§  587 

§638 §  839 

§  539 §  843 

§  540 §  844 

§  541 §  845 

§  542 §  849 

§  543 §  849 

§  644 §  861 

§  545 §  862 

§  546 §  863 

§  547 §  864 

§  548 §  866 

§  549 

§  550 §  875 

§  551 §  865-638 

§  552 §  866 

§  553  .........  §  867 

§  554 §  868 

§  555 §  869 

§  556 §  870 

§  557 §  870 

§  558 §  870 

§  559 §  870 

§  560 §  870 

§  561 §  870 

§  562 . §  870 

§  563  §  870 

§  564 §  870 

§  565 §  870 

§  566 Tg  870 

§  567  §  1057 

§  668 §  878 


§569 8  870 

§670 §  852 

§  571 §  851 

§572 §  851 

§  573 8  853 

§  574  ....;....  §  855 

§  576 §  886 

§  577 §  887 

§  578 §  854-6-7 

§579 §  469 

8  580  §  858 

§581 §  838 

§582  §  833 

§  6^3  §  875-8 

§  584 §  875-6 

§  586 §  877 

§  586 §  870-72 

§  587 §  881-2 

§  588 §  260 

§  589 §  227 

§  690 §  885 

S  5S1 §  890 

5  692  ., 8  870-1 

§  593 8  881 

§  594 8  891-2 

§  695 8  894 

§  596 §  895 

§  597 §  893 

§  598 §  896 

8  599 8  897-900 

8  600 8  901 

§  601 8  902 

§  602 :..  8  904 

§  603 8  925 

6  604 §  911 

§  605 §  912 

§  606 8  913 

8  607 '....v 8  914-915 

8  608 8  916 

6  609 8  917 

8  610 8  918 

8  611  §  920 

8  612 §  922 

§  613  §  849 

8  614 §  849 

§  616 8  «e« 


IC  CORRESPONDIIiG    SECTIONS. 

Practice  Act         Code  C.  P.      Practice  Act         Code  C.  P. 

§617 §     907-9  §   G39    §     932 

§618 §     910  §640 §     S74 

§  619 §     919  §  641 §     £33 

§  620 §  2019  §  643 §     129-SO 

§621 §     748  §645 §1055 

§622 §     657  §646 §1056 

§  623 §     659  §  647 §  1058 

§624 §     974  §650 §1057 

§625  §     975  §  651 §     564-69 

§  626 §     976  §  652 §     664-63 

§627 §     »77  §653 §1108 

§  628  §     978  §  654 §     548 

§629 §  979       §655 §1918-19 

§  630  Repl'd  1854,  100       §  656 §  388 

§631  §  924       §658 §  386 

§  632  Repl'd  1855.  250       §  659 §  887 

§  633  §  921       §  660 §  887 

§  634 §  923       §  661 §  387 

§  635 §  925       §  662 §  387 

636  §  929       §  6G3 §  1051 

637  §  930       §  684 §  696 


{  638 §  931       §  665 


Probate  Act    Code  C.  P.  Probate  Act    Code  C.  P. 

§   2 §  1294  §  23 §  1316 

§   3 §  1295  §  24 §  1317 

§   4 §  1298  §  25 §  1318 

§   5 §  1299  §  27 §  1322 

§   6 §  1300  §  28 §  1323. 

§   7 §  1293  §  29 §  1324 

§   8 §  1299  §  30 §  1327 

§   9 §  1299  §  31 §  1328 

§  10 §  1303  §  32 §  1329 

§  11 §  1302  §  33  §  1330 

§  12 §  1305  §  84 §  1331 

§  13  §1303  §  35 §1332 

§  14 §  1304  §  S6 §  1333 

§  15 §  1304  §  37 §  1338 

I  15 §  1303  §  38 §  1339 

§  17 §  130S  §  39 §  1340 

§  18 §  1307  §  40 §  1341 

§  19 I  1308  §  41 §  1349 

§  ZO 6  1312  §  42  §  1350 

5  21- §  1315  §  ^3  §  1351 

{  22 9  1215  §  44 §  1352 


CORRESPONDING   SECTIONS. 


17 


Probate  Act. 


Cede  C.  P.   Probate  Act 


Code  C.  P. 


i  45 8  1353 

{  46 S  1354 

9  47 §  1355 

i  48 S  1358 

i  49 §  1356 

S  60 '...  §  1S60 

S  61  .........  §  1361 

i  52 '.  §  1365 

§  63 §  1365 

§  54 §  1367 

§  55 §  1369 

S  56 §  ia70 

§  57 §  1368 

§  58  §  1371 

§  59 ;...  §  1372 

S  60 §  1373 

i  61 §  1374 

§  62 §  1375 

§  63 8  1376 

§  64 §  1377 

§  65 §  1373 

8  66 §  1379 

8  67  ..• 8  1383 

8  68 8  1384 

i  69 8  J.385 

§  70 8  1386 

§  71  ; 8  1363 

i  72 8  1387 

i  73 8  1388-90 

9  74 8  1391 

§  75 8  1392 

5  76 8  1393 

i  77 8  1396 

8  78 8  1397 

6  79 §  1398 

8  80'.. '. §  1399 

§  81 §  1400 

i  82 .-8  1401 

S  83 S  1402 

9  84 §  1403 

9  85 8  1404 

9  86 8  1405 

8  87 8  1408 

8  88 8  1411 

9  89 ;...  S  1412 

9  90 8  1413 


§  91 §  1414 

8  92 §  1415 

§  ^83 8  1416 

8  94 8  1417 

9  95 8  14U 

§  96 8  1425 

8  97 ; 8  1426 

§  98 8  1423 

§  99 8  1424 

8  100 9  1427 

I  101 8  1428 

§  102 8  1429 

8  103 8  1430 

8  104  ., 8  1432-33 

8  105 8  1443 

9  106 8  1444 

9  107 8  1445 

8  108 8  1446 

8  109 8  1447 

8  110 8-1448 

8  111 8  1449 

8  112 §  1450 

8  113 8  1451 

8  114 8  1452-53 

§  115 8  1516 

8  116 8  1458 

8  117 8  1459 

9  118 8  1460 

9  119 §  1461 

9  120 8  1464 

9  121 8  1465-75 

8  122 §  1466 

8  123 8  1467 

8  125 I  1468 

§  126  .........  8  1469 

8  127 8  1470 

8  128 8  1490-91 

9  129 8  1492 

8  130 8  1493 

8  131 8  1494-95 

8  132 .8  1496 

8  133 6  1497 

9  134 §  1498 

8  135 ?  1499 

§136  o §  1590 

§  137 9  1501 


18 


CORRESPONDING  SECTIONS. 


Probate  Act.    Code  C.  P. 

$  138 §  1502 

§  139 §  1503 

§  140 §  1504 

§  141 §  1505 

§  142 §  1507 

§  143 §  1508 

§  144 §  1509 

S  145 §  1510 

i   146 §  1511 

§  147 §  1512 

S  148 §  1517 

§  149 §  1518 

S  150 §  1522-23 

i   151 §  1525 

§  152 §  1526 

§153 §  1526 

i   153 §  1530-31 

§  154 §  1536 

§  155 §  1537 

S  156 §  1538 

8  157 §  1539 

S  158 §  1540 

I  159 §  1539 

§  160 §  1541 

§  161 §  1542 

§  162 §  1543 

§  163 §  1544 

§  164 o...  §  1545 

§  165  .., §  1546 

§  166 §  1547 

§  167 I  1548-50 

S  168 ■?  1551 

§  169 §  1552 

§  170 §  1553 

§  171 §  1554 

S  172 §  1555 

S  173 .\.   §  1556 

§  174 §  1557 

§  175 §  1558 

S  176 §  1559 

§  177 §  1560 

§  178 §  1561 

8  179 §  1562 

§  180 §  1563 

§  181 ......  §  1564 

8  182- 8  1565 


Probate  Act.    Code  C.  P, 

§  183 §  1566 

8  184 8  1567 

8  185 8  1568 

8  186 8  1569-70 

§  187 8  1569 

8  188 8  1571 

8  189 §  1572 

§  190 §  1573 

8  191 §  1574 

§  192 8  1575 

§  193 8  1676 

8  194 8  1581 

8  195 .'..  8  1582 

8  196 8  1583 

8  197 8  1584 

§  198 §  1585 

8  199 8  1586 

8  200 ;  §  1687 

8  201 §  1588 

8  202 §  1589 

8  203 §  1590 

§  204 .'....  §  1591 

8  205 8  1597 

8  206 8  1598 

8  207 8  1599 

8  208 8  1600 

8  209 §  1601 

§  210 §  1602 

§  211 §  1603 

8  212 8  1604 

8  213 8  1605 

8  214 8  1606-7 

§  215 8  1612 

§  216 §  1613 

§  217 S  1614 

8  218 §  1615 

8  219 8  1616 

§  220 8  1617 

§  221 8  1618 

I  222 8  1622 

§  223 §  1623 

8  224 §  1624 

§  225  ..• §  1625 

§  226 §  a628 

8  227 §  1627 

8  228 §  1623 


C0RR3SP0NDIN0  SECTIONS. 


19 


Probate  Act 


Code  C.  P.   Probate  Act 


Code  C.  P. 


§  229 §  1629 

S  230 §  1630 

§231 §  1631 

§  232 i  1632 

5  233 §  1633 

8  234 I  1635 

8  235 §  1636 

8  236 §  1636 

§  237 §  1637 

§  23S §  1638 

8  239 §  1643 

§  240 §  1644 

§  241 §  1645 

8  242 §  1646 

§  243 §  1647 

8  244 §  1648 

§  245 §  1649 

§  246 §  1650 

§  247 8  1651 

§  248 8  1652 

§  249 §  1653 

§  250 §  1658 

§  251 g  1659 

§  252 §  1660 

§  253 §  1661 

§  254 §  1661 

8  255 §  1661 

§  256 §  1661 

8  257 §  1662 

8  258 §  1665 

8  259 §  1666-67 

8  260 §  1668-69 

§  261 g  1675 

§  262 g  1677 

8  263 §  1676 

8  264 §  1678 

8  265 §  1679 

8  266 g  1680 

8  267 g  1681 

6  268 §  1683 

8  270 §  1683 

8  271  g  1684 

§  272 g  1685 

g  273 §  1686 

8  274 g  1691 

§  275  §  1692 


8  276 ;..  g  1693 

§  277 g  1695 

§  278 g  1096 

§  279 g  1697 

§  280 §  1698 

§  281 S  1436 

§  282  ..........  g  1411 

g  283 .-.  §  1437 

§  284 §  1438 

§  285 §  1439 

g  286 g  1440 

%   287 '..  g  1704-5 

§  288 8  1710 

g  289 §  1709 

§  290 g  17U 

g  291 g  2093 

§  293 g  1713 

g  294 g  1616-11 

g  295 ■§  1718 

g  296 g  1719 

g  297 

g  298 

g  299 ».. 

§  300  .; See  §g 

§  301  969-971 

g  302 g  1720 

g  302 g  1738 

g  302 g  1739 

g  304 g  1728 

I  305 g  1729 

g  305 g  1741-42 

g  306 g  1730 

g  307 g  1731 

g  308 g  1732 

g  309 /  g  1733 

g  310 g  1734 

g  311 g  1735 

g  312 §  1736 

g  315 

8  316 

g  317 

8  318 

g  319  ....  See  Civil  Code 

g  320 §§  1385-1399 

§  321 

g  322 


20 


CORRESPONDING  SECTIONS. 


Probate  Act    CJode  C.  P.   Probate  Act.    Code  C.  P» 


§  323 

§  324 

§  325 ;... 

§  326 »,.. 

§  328 §  1269 

§  329 ■§  1271 

§  331 §  1272 

§  336 §  1747 

§  337 §  1748 

§  338 §  1749 

§  339 §  1750 

I  340 §  1751 

§  341 §  1752 

§  342 §  1753-54 

§  343 §  1754 

§  344 §  1757 

§  345 §  1758 

§  346 §  1759 

§  347 §  176S 

§  348 §  1764 

§  349 ..w.  §  1765 

§350 §  1768 

§  351 §  1769 

i   352 ^.  §  1770 

S  353 §  1772 

§  354 §  1773 

S  355 §  1777 

5  356 §  1778 

i   357 §  1779 

§  358  ..4 §  1780 

§  359 §  1781 

i  360 §  1782 


§  361 §  1783 

§  362  , §  1784 

§  363 §  1785 

§  364 §  1786 

§  365 §  1787 

S  366 S  1788 

§  367 S  1789 

§  368 §  1790 

§  369 §  1808 

§  370 §  1774 

§  371 §  1792 

§  372 §  1801 

§  373 S  1802 

§  374 8  1803 

I  375 §  1804 

I  376 §  1805 

§  377  .,,, §  1800 

§  378 §  1793 

§  379 §  1794 

§  380  ., §  1795 

§  381 §  1796 

§  382 §  1776 

§  383 §  1807 

§  384 §  1775 

§  385 §  1791 

§  386 §  1797 

*  387 S  1798 

§  888 i   1799 

§  389 

§  390 Civil  Code 

%  391 Sections 

I  391 264-267 


CORRESPONDING    SECTIONS, 


PRACTICE  ACT. 

Table  of  sections  of  which  there  Is  no  corresponding 
section  in  the  Code  of  Civil  Procedure. 


SECnOK 

ENACTSn. 

AMENDED. 

BBFEAUSD. 

CAI-EKP. 
CITATION. 

211 

Apt.  29,  1851 

1863:689 

By  Code. 

857 

Apr.  29.  1851 

1854:  65 

Ey  Coda. 

363 

Apr.  29,   1851 

By  Code, 

364 

Apr.  29,  1851 

By  Code, 

365 

Apr.  29,  1851 

IS54:  66 

By  Coda. 

S66 

Apr.  29.  1851 

1853  :277 
1"854^   66 
1S54:  73 

By  Coda,, 

89-  99 

993 

Aj2r.  23,  1S51 

1854:   66 
1863  :701 

4-  16 
7-  96 

1869-70 :6B2 

By   Code. 

7-256 
9-  70 

16-556 
17-604 
25-189 
26-  35 
86-512 
43-529 
122-657 

417 

Apr.  29.  1851 

1863 :701 

By  Code. 
By  Code. 

17-604 

41S 

Apr.  29,  1851 

1863 :702 

•     17-604 

26-  35 

419 

Ajir.  28,  1951 

By  Coda. 

420 

Apr.  29,  1851 

1863:701 

By  Code. 

28-300 
35-  97 

421 

Apr.  29,  1851 

1863 :702 

9-  70 
•26-  85 

422 

Apr.  29,  1851 

1861:521 

1863 :702 

22-115 
22-235 
22-236 
22-660 
26-147 
26-148 

423 

Apr.  29,  1851 

1854:  67 

1863 :702 

8-302 

490 

Apr.  29.  1851 

By    Code. 

. 

601 

Apr.  "Za,  1851 

1853 :278 

1855 :250 

502 

Apr.  29,  1851 

1853  :278 

1855  :250 

603 

Apr.  29,  1851 

1855  :250 

509 

Apr.  29.  1851 

1859 :224 
1862:   88 
1863 :498 

By    Code. 

633 

Apr.  29,  1851 

IB60:304 

By    Code. 

637 

Apr.   29,   1851 

I'Bee  :708 

By    Cods. 

643 

Apr.   29,   1851 

1854:  67 

By    Code. 

84-645 

34- €46 

549 

Apr.  29,  1851 

By    Code. 

575 

Apr.   29,   1851 

By    Code. 

615 

Apr.   29,  1851 

By    Coda. 

«dO 

Apr.  29.  1851 

1853:281 

1854:  71 

22 


CORRESPONDING    SECTIONS. 


SECTION. 

ENACTED. 

AMENDED. 

EEPEAL.ED, 

CAI^  EEP. 
CITATION. 

632 

642 
644 
648 
649 

Apr.  29,  1851 

Apr.  29,  1851 
Apr.   29.   1851 
Apr.   29,   1851 
Apr.   29.  1851 

11^4:  n 
1855  :199 

1855  :250 
By    Code. 
By    Code. 
By    Code. 
By    Code.' 

PROBATE  ACT. 
Table  Ckf  sections  of  which  there  is  no  corresponding 
section  in  the  Code  of  Civil  Procedure. 


EECTIOH. 

ENACTKO. 

AMBNDED. 

REPEALED. 

CAL.  EEP. 
CITATION. 

1 

Apr.  22,  1850 
1851 :448 

1864:367 

1851:489 

20-158 

£6 

Apr.   22.   1850 
,     1851:448 

1851 :489 

121 

Apr.   22,   1850 
1851 :448 

1851:489 

29-372 
35-313 
35-315 
35-316 
S5-323 
43-643 

S«9 

Apt.  22,  1850 

1851 :448 

1861 :650 

1851  ^489 

291 

Apr.   22.   1850 
1851  :448 

1851 :489 

292 

Apr.   22,   1850 
1851 :448 

1861 :653 

1851 :489 

295 

Apr.   22.  1850 

1855  :S00 

1851 :489 

86-280 

1851 :448 

1861:664 

49-471 

803 

Apr.   22.   1850 
1851:448 

1851 :489 

818 

Apr.   22,   1850 

1851 :4S9 

S14 

Apr.  22,   1850 

1855:  S3 

1851:489 
ISei  :^55 

815 

Apr.   22,   1850 

1851 :489 

.818 

Apr.   22.   1850 

1S51 :489 

817 

Apr.  22.   1850 

1851 :4S9 

PRACTICE    ACT. 
NOTE.— Section  numbers  from  649  on  are  numbers  giren  by  tbe 
Editor  of  Practice  Act  in  1854.  and  cover  new  sections  added  and 
supplemental  sections. 

PROBATE    ACT. 
NOTE. — Sectkm  numbers  from  318  on  are  numbers  glyen  by  the 
Cdttcr  of  Probate  Act  In   1858,   and  cover  new  sections  added  aintt 
rapplemental  sections. 


AN  ACT  TO  ESTABLISH  A 

CODE  OF  CIVIL  PEOCEDUEE. 


Tlie  People  of  the  State  of  California,  represented  In  Senate 
and    Assembly,    do    enact   as    follows: 

TITLE    OF    ACT. 
g  L    Title    and    division    of    this    YotooM. 

8  1.  Title  and  division  of  this  volume.  This  act  shall 
be  known  as  The  Code  of  Civil  Procedure  of  California, 
and  Is  divided  into  four  parts,  as  follows: 

Part    I.  Of   Courts   of   Justice. 

II.  01    Civil    Actions. 

IIL  Of    Special    Proceedings    of   a   CiYil    Nature. 

rV.  Of   Evidence.     En.    Mar.    11,    1872. 

This    act,    how    cited:   Sec.    19,    post. 

Construction  of  the  codes  and  of  their  various  sections: 
See  PoL   Code,  sees.   4478  et  seq. 


THE 


CODE  OF  CIVIL  PEOCEDUEE 

OF    CALIFORNIA. 


PRELIMINARY  PROVISIONS. 

J.  When   this   code   tabes    effect. 

3.  Not  retroactive. 

4.  Rule  of  constrnctlon   of  this  code. 

5.  Provisions  similar  to  existing  laws,  how  construed. 

6.  Tenure  of  offices  preserved. 

7.  Construction  of  repeal    as   to    certain    ofHcers. 

8.  Actions,   etc,   not  aftected  by  this  code. 

9.  L>tmltatlons   shall  continue  to   run. 

10.  Holldaya. 

11.  Same. 

12.  Computation   of   time, 

13.  Certain   acts  not  to  be  doae  oq  boUdaya. 

14.  "Seal"   defined. 
IB.  Joint   authority. 

16.  Words  and  phrases. 

17.  Certain  terms  used  In   this  code  defined. 

15.  Statutes,    etc,    Inconsistent  with   code   repealed. 

19.  This  act,    how   dted,    enumerated,    etc. 

20.  Judicial   remedies   defined. 

21.  Division    of  judicial    remedies. 

22.  Action  defined. 

23.  Special   proceeding  defined. 

24.  Division  of  actions. 

25.  Civil  actions  arise   out  ot   obligations   or  Injuries. 

26.  Obligation  defined. 

27.  Division  of  injuries. 

28.  Injuries   to  property. 

29.  Injuries  to  the  person. 

30.  Civil  action,   by  whom  prosecuted. 

31.  Criminal   actions. 

82.    Civil   and    criminal   remedies   not    merged. 

5  2.  When  this  code  takes  effect.  This  code  takes 
effect  at  twelve  o'clock  noon,  on  the  first  day  of  January, 
eighteen  hundred  and  seventy-three.     En.   March  11,  1872. 

Effect  of  codes  generally:  See  Pol.  Code,  sees.  4478  et 
seq. 

(24) 


S  PRKUMINARY    PROVISIONS.  S5  S"" 

§  3.  Not  retroactive.  No  part  of  It  is  retroactive,  un- 
less expressly  so  declared.    En.  March  11,  1872. 

CaL  nep.  Cit  56,  299;  59,  289;  63,  264;  85,  84;  95,  201; 
106,  680;   117,  149. 

EMect   on  pending  proceedings   and   v^ted    rights:  See 
sec.  8,  post. 
Effect  of  code  c  -  existing  statutes:  See  sec.  18,  post. 

9  4.  Rule  of  construction  of  this  code.  The  rule  of  the 
common  law,  that  statutes  in  derogation  thereof  are  to  be 
strictly  construed,  has  no  application  to  this  code.  The 
code  establishes  the  law  of  this  state  respecting  tSfe  sub- 
jects to  which  it  relates,  and  its  provisions  and  all  pro- 
ceedings under  It  are  to  be  liberally  construed,  with  a 
view  to  effect  its  objects  and  to  promote  justice.  En. 
March  11,  1872. 

CaL  Rep.  Cit  61,  216;  64,  7;  64,  241;  64,  430;  66,  98: 
65,  303;  66,  289;  G6.  310;  72,  80;  74,  76;  80,  256; 
81,  419;  83,  370;  83,  464;  87,  294;  90,  506;  91,  353; 
92,  201;  93,  390;  93,  423;  94,  43;  99,  625;  102,  541; 
104,  492;  105,  558;  116,  381;  118,  383;  129,  811;  139, 
882;    140,    9;    142,    195;    144,    611. 

Construction  of  codes  with  relation  to  each  other,  and 
reconciling  conflicts  between  titles,  chapters,  and  articles: 
See  Pol.  Codes,  sees.  4480  et  seq. 

Rules  for  construction  of  statutes:  See  post,  sec3.  185^, 
1859,  1866. 

S  5.     Provisions  similar  to  existing  laws,  how  construed. 

The  provisions  of  this  code,  so  far  as  they  are  substan- 
tially the  same  as  existing  statutes,  must  be  construed  fcd 
continuations  thereof,  and  not  as  new  enactments.  En. 
March   11,   1872. 

Cal.   Rep.    Cit.     50,   613;     64,   241. 

EJffect  of  codes  on  existing  statutes:   See  post,  sec.  IS. 

§  6.    Tenure  of  offices  preserved.    All  persons  who  iit 

the  time  this  code  takes  effect  hold  office  under  any  of  the 
acts  repealed  continue  to  hold  the  same  according  to  the 
tenure  thereof,  except  those  offices  which  are  not  <'on- 
tinued  by  one  of  the  codes  adopted  at  this  session  of  tine 
legislatura  En.  Liarch  11,  1872. 
See  next  section. 


§§    7-10  PEELIMINARY  PKOVISIONS.  26 

§  7.  Construction  of  repeal  as  to  certain  officers.  When 
any  office  is  abolished  by  the  repeal  of  auy  act,  and  such 
act  is  not  in  substance  re-enacted  or  continued  in  either 
of  the  codes,  such  office  ceases  at  the  time  the  codes  take 
effect.     En.  March  11,  1872, 

Eepeals  by  implication:  See  sec.  18,  post. 

§  8.  Actions,  etc.,  not  affected  by  this  code.  No  action 
or  proceeding  commenced  before  this  code  takes  effect, 
and  no  right  accrued,  is  affected  by  its  provisions,  but 
the  proceedings  therein  must  conform  to  the  requirements 
of  this  code  as  far  as  applicable.     En.  March  11,  1872. 

Cal.  Eep.  Cit.  47,  59;  95,  202. 

Similar  provision  in  Civil  Code,  sec.  6;  see  also  repealing 
clause  at  the  end  of  this  code. 

§  9.  Limitations  shall  continne  to  run.  When  a  limita- 
tion or  period  of  time  prescribed  in  any  existing  statute 
for  acquiring  a  right  or  barring  a  remedy,  or  for  any  other 
purpose,  has  begun  to  run  before  this  code  goes  into  ef- 
fect, and  the  same  or  any  limitation  is  prescribed  In  thl8 
code,  the  time  which  has  already  run  shall  be  deemed 
part  of  the  time  prescribed  as  such  limitation  by  this  code. 
En.   March  11,  1872.     Ara'd.   1873-4,  279. 

Cal.   Rep.  Clt.  oO    613,   63,   265. 

Existing   actions   not   affected:  See   post,   sec.    36L 
Limitation  of  actions:   See  post,  sees.  312  et  seq. 

§  10.     Holidays.     Holidays   within  the   meaning  of  this 

code  are  evRry  Sunday,  the  first  day  of  January,  the  twenty- 
second  day  of  February,  the  thirtieth  day  of  May,  the 
fourth  day  of  July,  the  ninth  day  of  September,  the  first 
Monday  In  September,  the  twenty-fifth  day  of  December, 
every  day  on  which  an  election  is  held  throughout  the 
state,  and  every  day  appointed  by  the  President  of  Lue 
United  States,  or  by  the  governor  of  this  state,  for  a 
public  fast,  thankFrglvine;,  or  holiday.  If  the  first  day  of 
January,  the  twenty-second  day  of  February,  the  thir- 
tieth day  of  May,  the  fourth  day  of  July,  the  ninth  day 
of   September,   or   the   twenty-fifth    day   of   December   fall 


27  PRELIMINART    PROVISIONS.  S8  U-" 

upon  a  Sunday,  the  Monday  following  Is  a  holiday.  En. 
March  11,  1872.  Am'd.  1880,  59;  18S&,  46;  1893,  186;  18y7, 
15. 

Oal.  Rep.  Clt.    65,  621;    71.  465. 

Nonjudicial  days:  See  post,  sec.  134. 

Last  day  falling  on  holiday:  See  post,  sec.  18. 

§  11.  Same.  If  the  first  day  of  January,  the  twenty- 
second  day  of  February,  the  fourth  day  of  July,  or  the 
twenty-fifth  day  of  December,  falls  upon  a  Sunday,  the 
Monday  following  is  a  holiday.  En.  Marcii  11,  1872. 
Am'd.    1873-4,   280. 

Cal.  Rep.  Cit     68,  847;  145,  677. 

Last  day  falling  on  holiday:  See  post,  sec.  18. 

§  12.  Computation  of  time.  The  time  In  which  any  act 
provided  by  law  Is  to  be  done  is  computed  by  excluding  the 
first  day  and  Including  the  last,  unless  the  last  day  is  a 
holiday,  and  then  it  is  also  excluded.    En.  March  11,  1872. 

Cal.  Rep.  Cit  51,516;  61,832;  61,506;  63,347;  63.420; 
63.  421;  71.  4C5;  77,  812;  82,  217;  86,  126;  104,  522 J 
105,  182;  112,  610;  122,  401;  124,  95;  131,  594;  181, 
685;   182,  593;   136,  4;   136,  5. 

Time,  how  computed,  and  year,  week,  and  day  defined; 
Pol.  Code,  sees.  8255  et  seq. 

§  13.  Certain  acts  not  to  be  done  on  holidays.  When- 
ever any  act  of  a  secular  nature,  other  than  a  work  of 
necessity  or  mercy,  is  appointed  by  law  or  contract  to  be 
performed  upon  a  particular  day,  which  day  falls  upon  a 
holiday,  such  act  may  be  performed  upon  the  next  business 
day.  with  the  same  effect  as  if  it  had  been  performed  upon 
the   day   appointed.    En.   March   11.   1872. 

Cal.  Rep.  Clt.    71,  465;   110,  551;   121,  100;   136,  193. 

§  14.  "  Seal  "  defined.  When  the  seal  of  a  court,  public 
officer,  or  person,  is  required  by  law  to  be  affixed  to  any 
paper,  the  word  "seal"  Includes  an  impression  of  such  seal 
upon  the  paper  alone,  as  well  as  upon  wax  or  a  wafer  af- 
fixed  thereto.    En.   March   11,   1872. 

•    Seals:  See   post,   sees.    147-153,    1929-1934. 

Distinction  between  sealed  and  unsealed  InstnunentB 
abolished  by  Civil  Code.  sec.  1629. 


§§  15-17  PRELIMINARY    PROVISIONS.  Z8 

§  15.  Joint  authority.  Words  giving  a  joint  authority 
to  three  or  more  public  officers  or  other  persons  are  con- 
strued as  giving  such  authority  to  a  majority  of  them,  un- 
less it  is  otherwise  expressed  in  the  act  giving  the  au- 
thority.    En.   March   11,   1872. 

Cal.    Rep.    Clt.     63,   258. 

§  16.  Words  and  phrases.  Words  and  phrases  are  con- 
strued according  to  the  context  and  the  approved  usage  of 
the  language;  but  technical  words  and  phrases,  and  such 
others  as  have  acquired  a  peculiar  and  appropriate  mean- 
ing in  law,  or  are  defined  in  the  succeeding  section,  are  to 
be  construed  according  to  such  peculiar  and  appropriate 
meaning  or  definition.     En.   March  11,  1872. 

Cal.  Rep.  Clt     92,  245;   130,  577;   131,  293;   146,  783. 

S  17.    Certain  terms  used  In  this  code  defined.      Words 

used  in  this  code  In  the  present  tense  include  the  future 
as  well  as  the  present;  words  used  in  the  masculine  gen- 
der include  the  feminine  and  neuter;  the  singular  num- 
ber Includes  the  plural,  and  the  plural  the  singular;  the 
word  "person"  Includes  a  corporation  as  well  as  a  natural 
person;  the  word  "county"  Includes  "city  and  county"; 
writing  Includes  printing  and  typewriting;  oath  Includes 
affirmation  or  declaration;  and  every  mode  of  oral  state- 
ment, under  oath  or  affirmation,  Is  embraced  by  the  term 
"testify,"  and  every  written  one  In  the  term  "depose"; 
signature  or  subscription  Includes  mark,  when  the  person 
cannot  write,  hia  name  being  written  near  It  by  a  person 
who  writes  his  own  name  as  a  witness;  provided,  that 
when  a  signature  Is  by  mark  it  must.  In  order  that  the 
same  may  be  acknowledged  or  may  serve  as  the  signature 
to  any  sworn  statement,  be  witnessed  by  two  persons  who 
must  subscribe  their  own  names  as  witness  thereto. 

The  following  words  have  In  this  code  the  signification 
attached  to  them  In  this  section,  unless  otherwise  apparent 
from   the  context: 

1.  The  word  "propertT"  Includes  both  real  and  personal 
property; 

2.  The  words  "real  property"  are  coextensive  wltn 
lands,   tenements   and   hereditaments; 


29  PRELIMINARY    PROVISIONS. 

3.  The  words  "personal  property"  include  moucy,  goodis, 
chattp's,  things  in  jxction,  and  evidences  of  debt; 

4.  The  word  "month"  means  a  calendar  month,  unless 
otherwise    expressed; 

5.  The  word  "will"  includes  codicil; 

6.  The  word  "writ"  signifies  an  order  or  precept  in  writ- 
ing, issued  in  the  name  of  the  people,  or  of  a  court  ox 
judicial  officer;  and  the  word  "process"  a  writ  or  summons 
issued  in   the   course  of  judicial   proceedings; 

7.  The  word  "state,"  when  applied  to  the  different  parts 
of  the  United  States,  includes  the  District  of  Columbia  and 
the  territories;  and  the  words  "United  States"  may  in- 
clude the  district  and  territories; 

8.  The  word  "section"  whenever  hereinafter  employed, 
refers  to  a  section  of  this  code,  unless  some  other  code  or 
statute  is  expressly  mentioned, 

9.  The  word  ' '  affinity ' '  when  applied  to  the  marriage  re- 
lation, signifies  the  connection  existing  in  consequence  of 
marringc,  between  eacli  of  the  married  persons  and  the 
blood  relatives  of  the  other.  En.  March  11,  1872.  Am'd. 
1873-4,  280;  1903,  134. 

Cal.  Eep.  Cit.  54,  178;  66,  289;  121,  586;  135,  574;  136, 
674.  Subd.  2—142,  539;  146,  122.  Subd.  3—131,  39; 
142,  539. 

Prac.  Act,  sec.  647.     En.  April  29,  1851. 
Notice  defined:  See  Pol.  Code,  sec.  4175. 
Process  defined:   See  Pol.  Code,  see.  4175. 
Words  used  in  boundaries  are  defined  in  sections  3903   to 
3907  of  the  Political  Code. 

§  18.  Statutes,  etc.,  inconsistent  with  code  repealed.  No 
statute,  law,  or  rule  is  continued  in  force,  because  it  is  con- 
sistent with  the  provisions  of  this  code  07i  the  same  sub- 
ject; but  in  all  cases  provided  for  by  this  code,  all 
statutes,  laws,  and  rules  heretofore  in  force  in  this  state, 
whether  consistent  or  not  with  the  provisions  of  this  code, 
unless  expressly  continued  in  force  hj  it,  are  repealed  and 
abrogated.  This  repeal  or  abrogation  does  not  revive  any 
former  law  heretofore  repealed,  nor  docs  it  affect  any  right 
already  existing  or  accrued,  or  any  action  or  proceeding 
already  taken,  except  as  in  this  code  provided;  nor  does  it 


§§    19-23  PRELIMINARY   PROVISIONS.  30 

affect     any     private     statute     not    expressly     repealed.     En. 
March  11,  1872. 

Cal.  Eep.  Cit.  47,  59;  49,  597;  55,  95;  63,  580;  64,  8; 
64,  234;  64,  243;  64,  258;  65,  303;  73,  269;  80,  495;  93, 
424. 

Effect  of  code  on  prior  statutes:  See  ante,  sec.  8;  also  re- 
pealing clause  at  the  end  of  this  code. 

Limitations,  effect  of  code  on:  See  ante,  sec.  9. 
Eetroactive  effect:  See  sec.  3,  ante. 

Statutes   continued  in  force:   See   Pol.   Code,   sees.   18,   19. 
Vested  rights:  See  sec.  8,  ante. 

§  19.  This  act,  how  cited,  enumerated,  etc.  This  act, 
whenever  cited,  enumerated,  referred  to,  or  amended,  may 
be  designated  simply  as  the  "Code  of  Civil  Procedure," 
adding,  when  necessary,  the  number  of  the  section.  En. 
March  11,  1872. 

§  20.  Judicial  remedies  defined.  Judicial  remedies  are 
such  as  are  administered  by  the  courts  of  justice,  or  by 
judicial  officers  empowered  for  that  purpose  by  the  consti- 
tution and  statutes  of  this  state.     En.  March  11,  1872. 

Cal.  Eep.  Cit.  71,  397;  135,  14. 

§  21.  Division  of  judicial  remedies.  The  remedies  are 
divided  into  two  classes: 

1.  Actions;  and, 

2.  Special  proceedings.     En.  March  11,  1872. 
Cal.  Eep.  Cit.  118,  661;  118,  663;   135,  14. 

§  22.  Action  defined.  An  action  is  an  ordinary  proceed- 
ing in  a  court  of  justice,  by  which  one  party  prosecutes 
another,  for  the  enforcement  or  protection  of  a  right,  the 
redress  or  prevention  of  a  wrong,  or  the  punishment  of  a 
public  offense.     En.  March  11,  1872. 

Cal.  Eep.  Cit.  72,  339;  73,  4.55;  88,  379;  89,  106;  99,  170; 
117,  387;  118,  341;  118,  661;  118,  662;  118,  663;  135,  14; 
138,  581. 

§  23.  Special  proceeding  defined,  , Every  other  remedy 
is  a  special   proceeding.     En.  March   11,   1872. 

Cal.  Eep.  Cit.  88,  379;  89.  106;  92,  248;  117,  387;  118, 
661;  118,  662;  118,  663;  127,  561;  135,  14;  141,  98. 


H  PREIJMINARY    PROVISIONS.  5§   L't  3U 

Special  proceedings:  See  sees.  52,  76,  1022,  and  part 
three   of  this   code   generally. 

Special  proceedings  of  a  civil  nature:  See  post,  part 
three,  sees.  10G3  et  seq. 

§  24.     Division   of   actions.    Actions   are   of   two   kinds: 

1.  Civil;  and, 

2.  Criminal.     En.    March    11,    1872. 

Civil  action,  form  of:   See  sec.  307,  post. 
Criminal   action:  See   sec.   31,   post. 

§  25.  Civil  actions  arise  out  of  obligations  or  Injuries. 
A  civil  action  arises  out  of: 

1.  An   obligation; 

2.  An   injury.     En.    March    11,   1872. 

Cal.  Rep.  Cit.     49,  46G;   99,  170;   118,  341;  139,  405. 

§  26.  Obligation  defined.  An  obligation  is  a  legal  duty, 
by  which  one  ])erson  is  bound  to  do  or  not  to  do  a  certain 
thing,    and    arises    from: 

1.  Contract;    or, 

2.  Operation  of  law.  En.  March  11,  1872.  Am'd.  1873-4, 
281. 

Cal.    Rep.    Cit.     99,    170;    139,    405. 

Obligation,  what:   See  Civ.   Code,  sees.   1427,  1428. 

§  27.     Division  of  injuries.     An  injury  is  of  two  kinds: 

1.  To    the   person;    and, 

2.  To    property.     En.    March    11,   1872. 

§  28.  Injuries  to  property.  An  injury  to  property  con- 
sists in  depriving  its  owner  of  the  benefit  of  it,  which  is 
done  by  taking,  withholding,  deteriorating  or  destroying  it. 
En.    March    11,    1872. 

§  29.  Injuries  to  the  person.  Every  other  injury  is  an 
injury  to   the  person.     En.   March  11,   1872. 

§  30.  Civil  action,  by  whom  prosecuted.  A  civil  action 
is   prosecuted    by    one   party    against   anotlier   for   the   en- 


5 §  31,  32  PRELIMIXARY    PROVISIONS.  S2 

forcement  or  protection  of  a  right,  or  the  redress  or  pre- 
vention of  a  wrong.     En.  March  11,  1872. 

Cal.  Rep.  Cit     104,  13;    103,  655. 

Forms  of  action:  See  post,  sec.  307. 

§  31.  Criminal  actions.  The  Penal  Code  defines  and 
provides  for  the  P'rosecution  of  a  criminal  action.  En. 
March    11,    1872. 

Criminal  action  defined:  See  Pen.  Code,  sec.  683. 

§  32.  Civil  and  criminal  remedies  not  merged.  When 
the  violation  of  a  right  admits  of  both  a  civil  and  criminal 
remedy,  the  right  to  prosecute  the  one  is  not  merged  in 
the  other.    En.  March  11,  1872. 


PART  I. 

OF    COURTS    OF    JUSTICE. 


TITLE  I. 

ORGANIZATION     AND    JURISDICTION. 

Chapter  I.  Courts  of  Justice  in   General,    §§    33,   34. 

II.  Court    of    Impeachment,    §§    36-89, 

III.  Supreme   Court,   §§   40-57. 

IV.  Superior  Courts,  §§   65-79. 
V.  Justices'    Courts,    §§    85-115. 

VI.     Police    Courts,    §    121. 

VII,    General  Provisions  Respecting  Courts  of  Jus- 
tice,   §§    124-153. 

[Part  I,  §§  83-304,  amended  and  In  effect  April  1,  18i>U, 
Amendments    1880,   21    et   se^.J 

CHAPTER     I. 

COURTS  OF  justice:  in  genkrau 

§  33.    The   several  courts   of   this   state. 
§  34.     Courts  of  record. 

§  33.     The  several   courts  of  this  state.     The  following 

are   the   courts   of  justice  of   this  state: 

1.  The    court    of    impeachments; 

2.  The    supreme    court; 
8.  The    superior    courts; 
4.  The  justices'  courts; 

B.  The  police  courts  and  such  other  inferior  courts  as 
the  legislature  may  establish  in  any  incorporated  city:  or 
town,  or  city  and  county.  En.  March  11,  1872.  Am'd. 
1880,    21. 

Judicial   department.     See  Const.   Cal.,   arts.  3,  8. 
For  suba.  5,  see  Const.  Cal.  art.  6,  sec.  13. 
Jurisdiction  of  the  above   courts  is   considered,   post,  in 
the   various)   chapters  treating  thereof. 

Code   Civ,    Proo.— 8. 


§§   34-39  COURT    OF    IMPEACHMENT.  34 

Court  of  impeachment:   See  post,  sees.  3G  et  seq. 
Supreme  coun:   See  post,  sees.  40  et  seq. 
Superior  courts:    See  post,  sees.  65  et  seq. 
Justices'  courts:   See  post,  sees.   85  et  seq. 
Police  courts:    See  post,  sec.  121. 

§  34.  Courts  of  record.  The  courts  enumerated  in  the 
first  three  subdivisions  o£  the  last  preceding  section  are 
courts  of  record.     En.  March  11,  1872.     Am'd.  1880.  21. 

Courts  of  record:  See  Const.  Cal.,  art.  6,  sees.  12. 

§  35.     En.  March  11,  1872.     Rep.  1880,  21. 

CHAPTER  II. 

COURT   OF    IMPEACHMENT. 

8  86.  Members  of  the  court. 

8  37.  Jurisdiction. 

8  38.  Officers  of  the  court. 

§  39.  Trial  of  Impeachments  provided  for  In  the  Penal  Code. 

fi  36.  Members  of  the  court.  The  court  of  impeach- 
ment is  the  senate;  when  sitting  as  such  court,  the  sena- 
tors shall  be  upon  oath;  and  at  least  two-thirds  of  the 
members  elected  shall  be  necessary  to  constitute  a  quorum. 
En.    March  11,   1872.     Am'd.    1880,   22. 

Cal.    Rep.    Clt.     107,    118. 

§  37.     Jurisdiction.     The   court   has   jurisdiction   to   try 

Impeachments,  when  presented  by  the  assembly,  of  the 
governor,  lieutenant-governor,  secretary  of  state,  con- 
troller, treasurer,  attorney-general,  surveyor-general,  chief 
justice  of  the  supreme  court,  associate  justices  of  the  su- 
preme court,  and  Judges  of  the  superior  courts  for  any 
misdemeanor  In  office.  En.  March  11,  1872.  Am'd.  18«0. 
22. 
Jurisdiction:   See   Const.   Cal.,  art.   4,   sec.   18. 

§  38.  Officers  of  the  court.  The  officers  of  the  senate 
are  the  officers  of  the  court.  En.  Mar.  11,  1872.  Am'd. 
1880,  22. 

§  39.  Trial  of  Impeachments  provided  for  In  the  Penal 
Code.  Proceedings  on  the  trial  of  Impeachments  are  pro- 
vided for  In  the  Penal  Code.     En.  Stats.  1880,  22. 

Proceedings  for  removal:   See  Pen.  Code,  sees.  737  et  seq. 


SUPREME   COURT.  |  <0 


CHAPTER  III. 
SUPREME   COURT. 

40.  Justices,    elections,    and    terms    of    officts. 

41.  Computation  of   years  of  office. 

42.  Vacancies. 

43.  Departments. . 

44.  Apportionment  of  business. 

45.  Court  In  bank. 

46.  Absence  or  disability  of  chief  Justice. 

47.  Sessions. 

48.  Adjournments. 

49.  Decisions  In   writing. 

BO.  Jurisdiction    of   two   klnxla. 

51.  Original    Jurisdiction. 

8  52.  Appellate   Jurisdiction. 

§  53.  Powers  In  appealed   cases. 

8  54.  Concurrence   necessary    to    transact   business. 

8  55.  Transfer  of   books,    papers,    and   actions, 

b  56.  Remittiturs    In    transferred    cases. 

§  57.  Appeals   In   probate   proceedings  and  contested   election   cases. 

§  40.  Justices,  elections,  and  terms  of  office.  Tlie  su- 
preme court  shall  consist  of  a  chief  justice  and  six 
associate  justices,  who  shall  be  elected  by  the  qualified 
electors  of  the  state  at  large,  at  the  general  state  elections 
next  preceding  the  expiration  of  the  terms  of  office  of  their 
predecessors  respectively,  and  hold  their  offices  for  the 
term  of  twelve  years  from  and  after  the  first  Monday  after 
the  first  day  of  January  next  succeeding  their  election; 
provided,  that  of  the  justices  elected  at  the  general  state 
election  of  eighteen  hundred  and  seventy-nine,  the  chief 
justice  shall  go  out  of  office  at  the  end  of  eleven  years  and 
the  six  associate  justices  shall  have  so  classified,  or  shall 
so  classify  themselves,  by  lot,  that  two  of  them  shall  go 
out  of  office  at  the  end  of  three  years,  two  of  them  at  the 
end  of  seven  years,  and  two  of  them  at  the  end  of  eleven 
years,  from  the  first  Monday  after  the  first  day  of  January, 
eighteen  hundred  and  eighty;  and  an  entry  of  such  classi- 
fication shall  have  been  or  shall  be  made  in  the  minutes  of 
the  court  In  bank,  signed  by  them,  and  a  duplicate  thereof 
filed  in  the  office  of  the  secretary  of  state.  En.  March  11, 
1872.     Am'd.    1880,    22. 

Supreme  court:   See  Const.  Cal.,  art.  6,  sees.  2,  8. 
Eligibility:   See  post,  sec.  156. 


f§  41-43  SUPREME    COURT.  'i« 

Jurisdiction   of  supreme   court:   See  post,   sees.   50-53. 
Acts   relating   to    supreme    court    commission:  See    poet, 
Appendix,   Courts. 

§  41.  Computation  of  years  of  office.  The  years  during 
wliicli  a  justice  of  the  supreme  court  is  to  hold  office  are 
to  be  computed  respectively  from  and  including  the  first 
Monday  after  the  first  day  of  January  of  any  one  year  to 
and  excluding  the  first  Monday  after  the  first  day  of  Jan- 
uary of  the  next  succeeding  year.  En.  March  11,  1872. 
Am'd.   1880,   23. 

Term,  when  com^menced:   See  Const.  Cal.,  art.   6,  sec.  3. 

§  42.  Vacancies.  If  a  vacancy  occur  In  the  office  of  a 
justice  of  the  supreme  court,  the  governor  shall  apppoint 
au  eligible  person  to  hold  the  office  until  the  election  and 
qualification  of  a  justice  to  fill  the  vacancy,  which  election 
shall  take  place  at  the  next  succeeding  general  election; 
and  the  justice  so  elected  shall  hold  the  office  for  the  re- 
mainder of  the  unexpired  term  of  his  predecessor.  En. 
March  11,  1872.     Am'd.    1880,   23. 

Vacancy  in  office:   See  Const.  Cal.,  art.  6,  sec.  3. 

Vacancy  See  the  subject  generally,  Pol.  Code,  sees. 
995  et  seq. 

Absence  or  inability  of  chief  Justice  to  act:  See  post, 
sec.   46. 

Vacancy  In  office  of  ju-dge  does  not  affect  pending  pro- 
ceedings: See    post,    sec.    184. 

§  43.     Departments.     There  shall  be  two  departments  of 

the  supreme  court,  denominated  respectively  department 
one  and  department  two.  The  chief  justice  shall  assign 
three  of  the  associate  justices  to  each  department,  and 
such  assignment  may  be  changed  by  him  from  time  to 
time;  provided,  that  the  associate  justices  shall  be  compe- 
tent to  sit  in  either  department,  and  may  Interchange  with 
one  another  by  agreement  among  themselves,  or  if  no  such 
agreement  be  made  as  ordered  by  the  chief  justice.  The 
chief  justice  may  sit  in  either  department,  and  shall  pre- 
side when  so  sitting;  but  the  justices  assigned  to  each  de- 
partment shall  select  one  of  their  number  as  presiding 
Justice.    Each  of  the  departments  shall  have  the  power  to 


37  SUPREirE    COURT.  g;  44.   4.-> 

hear  and  determine  causes  and  all  questions  arising  tliere- 
in,  subject  to  the  provisions  in  relation  to  the  court  in 
banl{.  The  presence  of  three  Justices  shall  be  necessary  to 
transact  any  business  In  either  of  the  departments,  except 
such  as  may  be  done  at  chambers;  but  one  or  more  of  the 
justices  may  adjourn  from  time  to  time  with  the  same 
effect  as  If  all  were  present,  and  the  concurrence  of  three 
justices  shall  be  necessary  to  pronounce  a  judgment;  pro- 
vided, that  if  ihree  do  not  concur,  the  cause  may  be  re- 
heard In  the  same  department,  or  transmitted  to  the  other 
department,  or  to  the  court  In  bank.  En.  March  11,  1872. 
AmU   1878-4,   281;    1880,   23. 

Cal.   Rep.   Clt.    104,   135. 

Departments:  See  Const.  Cal.,  art.   6,  seo.  2. 

§  44.     Apportionment    of    business.     The    chief    Justice 

Bhall  apportion  the  business  to  the  departments,  and  may, 
in  his  discretion,  order  any  cause  pending  before  the  court 
to  be  heard  and  decided  by  the  court  in  bank.  The  order 
may  be  made  before  or  after  judgment  pronounced  by  a 
department;  but  when  a  cause  has  been  allotted  to  one  of 
the  departments  and  a  judgment  pronounced  therein,  the 
order  must  be  made  withfn  thirty  days  after  such  judg- 
ment, and  concurred  in  by  two  associate  Justices;  and  if  so 
made,  it  shall  have  the  effect  to  vacate  and  set  aside  the 
judgment.  Any  four  justices  may,  either  before  or  after 
Judgment  by  a  department,  order  a  cause  to  be  heard  in 
bank.  If  the  order  be  not  made  within  the  time  above 
limited,  the  judgment  shall  be  final;  provided  that  no 
Judgment  by  a  department  shall  become  final  until  the 
expiration  of  the  period  of  thirty  days  aforesaid,  unless 
approved  by  the  chief  justice  in  writing,  with  the  con- 
currence of  two  associate  justices.  En.  March  11  1872 
Am'd.   1880,  23. 

Similar  provision  in  constitution:  See  Const.,  art.  6, 
sec.  2. 

§  45.  Court  in  bank.  The  chief  justice,  or  any  four 
Justices,  may  convene  the  court  in  bank  at  any  time,  and 
the  chief  justice  shall  be  the  presiding  justice  of  the  court 
when  so  convened.  The  presence  of  four  justices  shall  ba 
necessary  to  transact  any   business,   and   the   concurrence 


5  5  46,   17  SUPREME    COURT.  S8 

of  four  justices  present  at  the  argument  shall  be  necessary 
to  pronounce  a  judgment  in  the  court  in  bank;  provided, 
that  if  four  justices  so  present  do  not  concur  in  a  judg- 
ment, then  all  the  justices  qualified  to  sit  in  the  cause  shall 
hear  the  argument,  but  to  render  a  judgment  a  concurrence 
of  four  justices  shall  be  necessary;  and  every  judgment  of 
the  court  in  bank  shall  be  final,  except  in  cases  in  which 
no  previous  judgment  has  been  rendered  In  one  of  the  de- 
partments, and  in  such  cases  the  judgment  of  the  court 
in  bank  shall  be  final,  unless  within  thirty  days  after  such 
judgment  an  order  be  made  in  writing,  signed  by 
five  justices,  granting  a  rehearing.  En.  March  11,  1871!. 
Am'd.   1880,  24. 

Cal.  Rep.  Clt.     72,  540;   81,  460;  81,  466;   81,  470;  81,  472; 
81,  475;   81,  477;   81,  480. 

Const.   Cal.,  art.   6,  sec.   2. 

§  46.  Absence  or  disability  of  chief  justice.  In  case  of 
the  absence  of  the  chief  justice  from  the  place  at  which 
the  court  in  bank  is  held,  or  his  inability  to  act,  the  asso- 
ciate justices  shall  select  one  of  iheir  own  number  to  per- 
form the  duties  and  exercise  the  powers  of  the  chief  jus- 
tice during  such  absence  or  inability  to  act.  Em.  March 
11,    1872.     Am'd.    1880,    24. 

Const.  Cal.,  art  6,  sec.  2. 

S  47.  Sessions.  The  supreme  court  shall  always  be 
open  for  the  transaction  of  business,  it  shall  hold  regular 
session  for  the  hearing  of  causes,  either  in  bank,  or  in 
one  or  both  of  its  departments,  at  the  capital  of  the  state, 
commencing  on  the  first  Mondays  of  May  and  second  Mon- 
days of  November;  at  the  city  and  county  of  San  Francisco, 
commencing  on  the  second  Mondays  of  January  and  third 
Mondays  of  July;  and  at  the  city  of  Los  Angeles,  com- 
mencing on  the  first  Mondays  of  April  and  second  Mondays 
of  October;  and  special  sessions  at  either  of  the  above- 
named  places  at  such  other  times  as  may  be  prescribed  by 
the  justices  thereof.  The  justices  and  officers  of  the  su- 
preme court  shall  be  allowed  their  actual  traveling  ex- 
penses in  going  to  and  from  their  respective  places  of 
residence  upon  the  business  of  the  court,  or  to  attend  Ita 
eessions.  If  proper  rooms  in  which  to  hold  the  court,  and 
for  the  accommodation  of  the  officers  thereof,  are  not  pro- 


S9  SUPREME    COURT.  {}  48-BO 

vided  by  the  state,  together  with  attendants,  furniture, 
fuel,  lights  and  stationery,  suitable  and  sufficient  for  the 
transaction  of  business,  the  court,  or  any  three  justices 
thereof,  may  direct  the  clerk  of  the  supreme  court  to  pro- 
vide such  rooms,  attendants,  furniture,  fuel,  lights,  and 
stationery;  and  the  expenses  thereof,  certified  by  any  three 
Justices  to  be  correct,  shall  be  paid  out  of  the  state  treas- 
ury, for  which  expenses,  and  to  defray  the  traveling  ex- 
penses of  the  justices  and  officers  of  the  supreme  court 
above  mentioned,  a  sufficient  sum  shall  be  annually  ap- 
propriated out  of  any  funds  in  the  state  treasury  not 
otherwise  appropriated.  The  moneys  so  appropriated 
shall  be  subject  to  the  order  of  the  clerk  of  the  supreme 
court,  and  be  by  him  disbursed  on  proper  vouchers,  and 
the  same  shall  be  accounted  for  by  him  In  annual  settle- 
ments with  the  controller  of  state  on  the  first  Monday  of 
December  of  each  year.  En.  March  11,  1872.  Am'd.  1880, 
24. 

Cal.   Rep.  Clt.     74,  606;    74.  607. 

Always  open:  Const.  Cal.,  art  6,  seo.  2,  and  sec.  184, 
post. 

§  48.  Adjournments.  Adjournments  from  day  to  day 
or  from  time  to  time,  are  to  be  construed  as  recesses  in  the 
sessions,  and  shall  not  prevent  the  court,  or  either  of  its 
departments,  from  sitting  at  any  time.  En.  March  11, 
1872.     Am'd.    1880,    25. 

Const.  Cal.,  art.  6,  sec.  2. 

Terms  of  court:  This  section,  with  section  74,  post, 
does  away  with  the  terms  of  courts.  See,  also,  post,  sec- 
tions 88  and  104  as  to  justices'  courts. 

§  49.  Decisions  in  writing.  In  the  determination  of 
causes,  all  decisions  of  the  supreme  court  in  bank,  or  in 
departments,  shall  be  given  In  wriUng,  and  the  grounds  of 
the  decision  shall  be  stated.  En.  March  11,  1872.  Am'd. 
1877-78,  22;  1880,  25. 
Const.  Cal.,  art.  6,  sec.  2. 

§  50.  Jurisdiction  of  two  kinds.  The  jurisdiction  of  the 
supreme  court  is  of  two   kinds: 

1.  Original;    anvi, 

2.  Appellate.  En.  March  11,  1872.  Am'd.  1873-4,  395; 
1877-8.    22;    1880,    25. 

See  subsequent   sections  of  this  chapter. 


.,  ^,    ,„  SUPREME    COURT.  4„ 

8  51.  Original  jurisdiction.  In  the  exercise  of  its  orig- 
inal jurisdiction  tlie  supreme  court  shall  have  power  to 
issue  writs  of  mandamus,  certiorari,  prohibition,  and  ha- 
beas corpus;  and  it  shall  also  have  power  to  issue  all 
other  writs  necessary  and  proper  to  the  complete  exercise 
of  its  appellate  jurisdiction.  En.  1877-8,  22.  Am'd.  1880, 
25. 

Cal.    Rep.    Cit.     81,    616. 

Const.  Cal.,  art.  6,  sec.  4. 

Mandamus:    Post,  sees.  54,  76,  165,  1084  et  seq.,  1108-1110. 

Certiorari:  Post,  sees.  54,  76,  165,  1067  et  seq.,  1108-1110. 

Prohibition:   Post,  sees.  54,  76,  165,  1102  et  seq.,  1108-1110. 

Habeas  corpus:  See  Const,  art.  6,  sec.  4;  also,  post,  sees. 
54,  76,  165;   generally.  Pen.  Code,  sees.  1473  et  seq. 

Injunction:  Post,  sees.  54,  76,  165,  356,  525  et  seq.,  745, 
1341. 

Scire  facias  abolished:  Post,   sec.    802. 

Quo  warranto:  Post,  sees.  76,  803-810. 

Writ:  Defined,  ante,  sec.  17;  seal:  Post,  sec.  153;  issu- 
ance:  Post,  sec.  54;   service  by  telegraph:   Post,  sec.  1017. 

Powers  of  single  justice  to  issue  writs:   See  post,  sec.  54. 

Ne  exeat:   See  post,  sees.  478  et  seq. 

§  52.  Appellate  Jurisdiction.  The  supreme  court  shall 
have   appellate  jurisdiction: 

1.  In  all  cases  in  equity,  except  such  as  arise  in  justices' 
courts. 

2.  In  all  cases  at  law  which  Involve  the  title  or  posses-, 
Bion  of  real  estate,  or  the  legality  of  any  tax,  impost,  as- 
Bessment,  toll  or  municipal  fine,  or  in  which  the  demand, 
exclusive  of  Interest,  or  the  value  of  the  property  m  con- 
troversy, amounts  to  three  hundred  dollars. 

3.  In  all  cases  of  forcible  entry  and  detainer,  proceedings 
In  insolvency,  actions  to  prevent  or.  abate  a  nuisance,  and 
in  all  such  probate  matters  as  may  be  provided  by  law. 

4.  In    all   special   proceedings. 

5.  In  all  criminal  cases  prosecuted  by  indictment  or 
information,  in  a  court  of  record,  on  questions  of  law 
alone.     En.   Stats.   1880,   25. 

Cal.  Rep.  Cit.     60,  115;  60,  654;  67,  212;  118,  485;  134,  612. 

Appellate  Jurisdiction:  Const.   Cal.,  art.   6,  sec.  4. 
Appeals   In   general:   Sees.    936   et   seq. 
Appeals  to  supreme  court:   Sees.  963  et  seq. 


41  SUPREME    COURT.  85  BS-M 

§  53.  Powers  in  appealed  cases.  The  supreme  court 
may  affirm,  reverse,  or  modify  any  .iudgmeat  or  order 
appealed  from,  and  may  direct  the  proper  judgment  or 
order  to  be  entered,  or  direct  a  new  trial  or  further  pro- 
ceedings to  be  had.  The  decision  of  the  court  shall  be 
given  in  writing,  and  in  giving  its  decision,  if  a  new  trial 
be  granted,  the  court  shall  pass  upon  and  determine  all 
the  quesiions  of  law  involved  in  the  case,  presented  upon 
such  appeal,  and  necessary  to  the  final  determination  of 
the  case.  Its  judgment  in  appealed  cases  shall  be  remitted 
to  the  court  from  which  the  appeal  was  taken.  En.  atats. 
1880,  25. 

Oal.  Rep.  CIt.     60,  471;  81,  465;  118,  469;  182,  285. 

Errors  and  defects  are  to  be  disregarded:  Post,  sec.  475. 
Records,  though   not  conclusive,  are  presumed  correctly 
to  determine  the  rights  of  the  parties:  Sec  1963,  subd.  17. 
Costs  on  appeal:   Post,  sec.   1027. 
Remittitur:  Post,  sec.   958. 

§  54.     Concurrence  necessary  to  transact  business.    The 

concurrence  of  three  justices  of  the  supreme  court  is 
necessary  for  the  issuance  of  any  writ,  or  the  transac- 
tion of  any  business,  except  such  as  can  be  done  at 
chambers;  provided,  that  each  of  the  justices  shall  have 
power  to  issue  writs  of  habeas  corpus  to  any  part  of  the 
state  upon  petition  by  or  on  behalf  of  any  person  held  In 
actual  custody,  and  may  make  such  writs  returnable  be- 
fore himself  or  the  supreme  court,  or  any  department,  or 
judge  thereof,  or  before  any  superior  court  in  the  state  or 
any  judge  thereof.    En.  March  11,  1872.    Am'd.  1880,  25. 

See  Const.  Cal.,  art.  6,  sec.  2. 

Business  at  chambers:   Post,   sec.   165. 

Habeas  corpus:  See  U.  S.  Const.,  art  8,  Amdts.,  and 
Const.  Cal.,  art.  6,  sec.  4;  also,  post,  sees.  76,  165;  gen- 
erally, Pen.  Code,  sees.  1268  et  seq.,  1473  et  seq.,  1492  et 
seq. 

§  55,    Transfer    of    books,     papers,     and     actions.    All 

records,  books,  papers,  causes,  actions,  proceedings,  and 
appeals  lodged,  deposited,  or  pending  in  the  supreme  court 
abolished  by  the  constitution,  are  transferred  to  the  su- 
preme court  herein  provided  for,  which  has  the  same  power 


§§  J6-M  gJFREME   COURT.  M 

and  juriEdiction  over  them  as  if  they  had  been  in  the  first 
Instance  lodged,  deposited,  filed,  or  commenced  therein, 
or,  in  cases  of  appeal,  appealed  thereto.  En.  March  11, 
1872.     Am'd.  1880,  25. 

Const.   Cal.,  art   22,   sec.   8. 

§  56.  Remittiturs  In  transferred  cases.  In  all  cases  of 
appeal  transferred  to  the  supreme  court,  its  judgments 
shall  be  remitte'd  to  the  superior  courts  of  the  counties, 
or  cities  and  counties,  from  which  the  appeals  were  taken 
respectively,  with  the  same  force  and  effect  as  if  said 
cases  had  been  appealed  to  the  supreme  court  from  such 
superior  courts.    En.  March  11,  1872.    AmU  1880,  26. 

§  57.  Appeals  In  probate  proceedings  and  contested 
election  esses.  Appeals  in  probate  proceedings  and  con- 
tested election  cases  shall  be  given  preference  in  hearing 
In  the  supreme  court,  and  be  placed  on  the  calendar  in 
the  order  of  their  date  of  issue,  next  after  cases  in  which 
the  people  of  the  state  are  parties.  En.  March  11,  1872. 
En.  Stats.  1887,  82.     Am'd.  1903,  G9. 

Cal.  Rep,  Cit  45,  243;  47,  605;  49,  467;  134,  612. 

§  58.  En.  March  11,  1872.  Am'd.  1873-4,  397;  1875-6,  88 
Rep.  1880,  21. 

§  59.  En.  March  11,  1872.  Am'd.  1875-6.  83.  Rep. 
1880,  21. 

§  60.  En.  March  11,  1872.  Am'd.  1877-8,  93.  Rep. 
1880,  21. 

§  61.     En.  March  11,  1872.     Rep.  1880,  21. 
Cal.    Rep.    Clt.     71,    397. 

§  62.     En.  March  11,  1872,     Rep.  1880,  21. 

§  63.     En.  March  11,  1872.     Rep.  1880,  21. 

§  64.  En.  March  11,  1872.  Am'd.  1875-6,  84.  Rep. 
1880,  21. 


I  SUPERIOR    COURTS.  J8  I*.  8« 

CHAPTER    IV. 

SUPERIOR   COURTS. 

65.  Judges  and  elections. 

6G.  Superior  courts  of   two  or   more  judges. 

67.  Superior  courts  of  the  city  and  county  of  San  Francisco. 

68.  Terms  of  office. 

69.  Computation   of  years   of  office. 

70.  Vacancies. 

71.  Superior   courts   by   judges   of   other  counties. 

72.  Judges  pro  tempore. 
78.  Sessions. 

74.  Adjournments. 

76.  Jurisdiction   of   two   kinds. 

76.  Original    jurisdiction. 

77.  Appellate  jurisdiction. 

78.  Process. 

79.  Transfer   of  books,    papers,    find   actions. 

6  65.  Judges  and  elections.  There  shall  be  In  each  of 
a  superior  court,  for  each  of  which  one  judge,  and  for 
the  organized  counties,  or  cities  and  counties,  of  the  state, 
some  of  which  two  or  more  judges,  as  hereinafter  in  sub- 
sequent sections  specially  provided,  shall  be  elected  by 
the  quallfled  electors  of  the  county,  or  city  and  county,  at 
Ihe  general  state  elections  next  preceding  the  expiration 
of  the  terms  of  office  of  their  predecessors  respectively; 
provided,  that  in  and  for  the  counties  of  Yuba  and  Sutter 
combined,  only  one  superior  judge  shall  be  elected,  who 
shall  hold  the  superior  courts  of  both  said  counties,  and 
In  accordance  with  such  rules  for  the  dispatch  of  business 
in  both  said  counties  as  he  may  adopt.  En.  March  11, 
1872.     Am'd.  1880,  26. 

Number  of  superior  judges:  See  Const.  Cal.,  art.  6,  sec, 
6. 

Jurisdiction  of  superior  courts:   See  post,  sees.  75-78. 

Acts  Increasing  and  reducing  number  of  judges  in  various 
counties:   See  post,   Appendix,   Courts. 

Separate  judges  for  Sutter  and  Yuba:  See  Stats.  1897, 
p.   48. 

§  66.  Superior  courts  of  two  or  more  Judges.  In  each 
of  the  counties  of  Alameda,  Los  Angeles,  Sacramento,  San 
Joaquin,  Santa  Clara,  and  Sonoma,  there  shall  be  elected 
two  judges  of  the  superior  court;  and  in  each  of  said 
counties,  and  in  any  county,  or  city  and  county,  other  than 
the  city  and  county  of  San  Francisco,  in  which  there  shall 


88  87.  68  SUPERIOR    COURTS.  •* 

be  more  than  one  judge  of  the  superior  court,  the  judges 
of  such  court  m&y  hold  as  many  sessions  of  said  court 
at  the  same  time  as  there  are  judges  thereof,  and  sh-all 
apportion  the  business  a,mong  themselves  as  equally  as 
may  be.    En.  March  11,  1872.    Am'd.  1880,  26. 

Number  of  superior  judges:  See  Const.  Cal.,  art.  6,  sees. 
6,  7. 

Acts  increasing  and  reducing  number  of  judges  in  var- 
ious counties:  See   post.   Appendix,   Courts. 

§  67.  Superior  court  of  the  city  and  county  of  San 
Francisco.  In  the  city  and  county  of  San  Francisco  there 
shall  be  elected  twelve  judges  of  the  superior  court,  any 
one  or  more  of  whom  may  hold  court;  and  there  may  be 
as  many  sessions  of  said  court  at  the  same  time  as  there 
are  judges  thereof.  The  said  judges  shall  choose  from 
their  ov/n  number  a  presiding  judge,  who  may  at  any 
tLme  be  removed  and  another  chosen  in  his  place,  by  a  vote 
of  any  seven  of  them.  The  presiding  judge  shall  distribute 
the  business  of  the  court  among  the  judges  thereof,  and 
prescribe  the  order  of  business.  The  judgments,  orders, 
and  proceedings  of  any  session  of  the  superior  court,  held 
by  any  one  or  more  of  the  judges  of  said  court,  shall  be 
equally  effective  as  if  all  the  judges  of  said  court  presided 
at  such  session.  En.  March  11,  1872.  Am'd.  1873-4,  398: 
1880,  26, 

Number  of  superior  judges:  See  Const.  Cal.,  art.  6,  sec. 
6. 

Process:   Post,   sec.   78. 

Act  allowing  superior  judges  of  San  Francisco  to  ap- 
point secretary:  See  post,  Appendix,  Courts. 

§  68.  Terms  of  office.  The  term  of  office  of  Judges  of 
the  superior  court  shall  be  six  years  from  and  after  the 
first  Monday  of  January  next  succeeding  their  election; 
provided,  that  the  twelve  judges  of  the  superior  court 
elected  In  the  city  and  county  of  San  Francisco  at  the 
general  state  election  of  eighteen  hundred  and  seventy- 
nine  shall  have  so  classified,  or  shall  so  classify  themselves, 
by  lot,  that  four  of  them  shall  go  out  of  office  at  the  end 
of  one  year,  four  of  them  at  the  end  of  three  years,  and 
four  of  them  at  the  end  of  five  years  from  the  first  Mon- 
day of  January,  eighteen  hundred  and  eighty;  and  the 
entry  of  such  classiflcatiou  shall  have  been,  or  shall  be, 


a  BXIPKRIOR    COURTS.  g{  dS-H 

made  In  the  minutes  of  the  court,  signed  by  them,  and  a 
duplicate  thereof  filed  in  the  office  of  the  secretary  of 
state;  and  provided  further,  that  all  the  other  superior 
judges  elected  at  the  general  state  election  of  eighteen 
hundred  and  seventy-nine  shall  go  out  of  office  at  the  end 
of  five  years  from  the  first  Monday  of  January,  eighteen 
hundred  end  eighty.  En.  March  11,  1872,  Am'd.  1875-6, 
84;    1880,  27. 

Term  of  Oflice:   See  Oonst.  Cal.,  art.  6,  sec.  6. 

§  69.  Computation  of  years  of  office.  The  years  during 
■which  a  judge  of  a  superior  court  is  to  hold  office  are  to 
be  computed  respectively  from  and  Including  the  first 
Monday  of  January  of  any  one  year  to  and  excluding  the 
first  Monday  of  January  of  the  next  succeeding  year.  En. 
March  11,  1872.     Am'd.  1880,  27. 

Cal.  Rep.  Cit.     99,  44. 

Computation  of  time:  See  Const.  Cal.,  art.  6,  sec.  6.  See 
Sec.   41,   ante. 

§  70.  Vacancies.  If  a  vacancy  occur  In  the  office  of 
judge  of  a  superior  court,  the  governor  shall  appoint  an 
eligible  person  to  hold  the  olflce  until  the  election  and 
Qualification  of  a  judge  to  fill  the  vacancy,  which  election 
shall  take  place  at  the  next  succeeding  general  election, 
and  Vie  judge  so  elected  shall  hold  office  for  the  remainder 
of  the  unexpired  term.  En.  March  11,  1872.  Am'd.  18*^-4, 
899;    1880,   27. 

Vacancy  filling:  See  Const.  Cal.,  art.  6,  sec.  6.  See  sec. 
42,  ante. 

Vacancies  in  office,  and  the  mode  of  supplying  them: 
See  Pol.  Code,  sees.  995  et  seq. 

Vacancy  does  not  affect  pending  proceedings:  See  post, 
sec.   184. 

§  71.     Superior   courts  by  Judges   of  other  counties.     A 

judge  of  any  superior  court  may  hold  the  superior  court  in 
uny  county,  at  the  request  of  the  judge  or  judges  of  the 
superior  court  thereof,  and  upon  the  request  of  the  gov- 
ernor, It  shall  be  his  duty  to  do  so;  and  in  either  case  the 
judge  holding  the  court  shall  have  the  same  power  as 
a  judge  thereof.     En.  March  11,  1872.     Am'd.  1880,  27. 

0»1.  Rep.  Cit.     56,  829;  75,  221;  87,  897;  97.  177;  126,  620. 


§§  72,  73  SUPERIOR    COURTS.  46 

Sitting  for  another  judge:  See  Const.  Gal.,  art.  6,  sec.  8.' 
See   post,   sec.    1  GO. 

§  72.  Judges  pro  tempore.  Any  cause  In  a  superior 
court  may  be  tried  by  a  judge  pro  tempore,  wiio  must  be 
a  member  of  tlie  bar  admitted  to  practice  before  tiie 
supreme  court,  agreed  upon  in  writing  by  the  parties  liti- 
gant, or  their  attorneys  of  record,  approved  by  the  court, 
and  sworn  to  try  the  cause;  and  his  action  in  the  trial 
of  such  cause  shall  have  the  same  eiSect  as  if  he  were  a 
judge  of  Buch  court.  A  judge  pro  tempore  shall,  before 
entering  upon  his  duties  in  any  cause,  take  and  subscribe 
the  following  oath  or  affirmation:  "I  do  solemnly  swear 
(or  affirm,  as  the  case  may  be)  that  I  will  support  the 
constitution  of  the  United  States  E.nd  the  constitution  of 
the  state  of  California,  and  that  I  will  faithfully  discharge 
the  duties  of  the  oflice  of  judge  pro  tempore  In  the  cause 
wherein  is  plaintiff,  and  is  defendant,  accord- 
ing to  the  best  of  my  ability."  En.  March  11,  1872.  Am'd. 
1880,   27. 

Judge  pro  tempore:   Const.   Cal.,  art.   6,   sec.   8. 
Superior  judge  must  be  admitted  before  supreme  court: 
See    post,    sec.    157. 

§  73.  Sessions.  The  superior  court  shall  be  always 
open  (legal  holidays  and  non-judicial  da.rs  excepted)  and 
they  shall  hold  their  session  at  the  county  seats  of  the 
several  counties,  or  cities  and  counties,  respectively.  They 
shall  hold  regular  sessions,  commencin'g  on  the  first  Mon- 
days of  January,  April,  July,  and  (>cto^e^,  and  special  ses- 
sions at  such  other  times  as  may  be  prescribed  by  the 
judge  or  judges  thereof;  provided,  that  in  the  city  .^-lJ 
county  of  San  FYancisco  the  presiding  judge  shall  pre- 
scribe the  times  of  holding  such  special  sessions.  En. 
March  11,  1872.     Am'd.   1880,  27. 

Cal.  Rep.  Cit.     69,  544;   119,  61G;   142,  500. 

Duties  (l  superior  judges  generally:  See  Pol.  Code. 
Bdc.   4134. 

Always  open:  See  Const.  Cal.,  art.  G,  sec.  5;  post,  sees. 
104,   134. 

HolMays,  etc.:  See  ante,  sec.  10;   post,  sees.  134,  135. 


47  SUPERIOR    COURTS.  85  74-76 

§  74.  Adjournments.  Arljournments  from  daj^  to  day, 
or  from  time  to  time,  are  to  be  construed  as  recesses  in 
the  sessions,  and  shall  not  prevent  the  court  from  sitting 
at  any  time.    En.   March  11,  1872.    Am'd.  1880,  28. 

Cal.    Rep.  Cit.     69.  544;   69,  545;   119,  616;    142,  500. 

Adjournments  from  time  to  time  mere  recesses  In  the 
sessions:   See    ante,   sec.    48. 

§  75.  Jurisdiction  of  two  kinds.  The  Jurisdiction  of  the 
superior  courts  is;  of  two  kinds: 

1.  Original;    and, 

2.  Appellate.    En.  March   11,  1872.    Am'd.   1880,   28. 

§  76.  Original  jurisdiction.  The  superior  courts  shall 
have  original  jurisdiction: 

1.  In   all   cases   in    equity. 

2.  In  all  civil  actions  in  which  the  subject  of  litigation 
is  not  capable  of  pecuniary  estimation. 

8.  In  all  cases  at  law  which  involve  the  title  or  posses- 
sion of  real  property,  or  the  legality  of  any  tax,  impo"st, 
assessment,  toll,  or  municipal  fine,  and  in  all  other  cases  in 
which  the  demand,  exclusive  of  interest  or  the  value  of 
the  property  in  controversy,  ajnounta  to  tliree  hundred 
dollars. 

4.  Of  a/Ctions  of  forcible  entry  and  detainer,  of  proceed- 
ings in  Insolvency,  of  actions  to  prevent  or  abate  a  nui- 
sance, of  all  matters  of  probate,  of  divorce,  and  for  annul- 
ment of  marriage,  and  of  all  such  special  cases  and  pro- 
ceedings as  are  not  otherwise  provided  for. 

5.  In  all  criminal  cases  amounting  to  felony,  and  cases 
of  misdemeanors  not  otherwise  provided  for.  Said  courts 
shall  have  the  power  of  naturalization,  and  to  issue  papers 
therefor.  Said  courts  and  their  Judges,  or  any  of  them, 
shall  have  power  to  issue  writs  of  mandamus,  certiorari, 
prohibition,  quo  warranto,  and  of  habeas  corpus  on  petition 
by  or  on  behalf  of  any  person  In  actual  custody.  In  their 
respective  counties.  Injunctions  and  writs  of  prohibition 
may  be  issued  and  served  on  legal  holidays  and  nonjudicial 
days.     En.  March  11,  1872.     Am'd.  1873-4,  281;   1880,  28. 

Cal.  Rep.  Cit.     54,  150;    69,  557;    69,  559;   71,  88;   88,  473; 
84,  120;   87,  232;   138,  164.     Subd.  3—86,  46L 


§§  77-7»  SUPERIOR    COURTS.  ♦« 

Jurisdiction  of  superior  court:  See  Const.  Cal.,  art.  6, 
B6C.     5. 

Venue  of  actions:   Sees.  392  et  seq.,  post. 

Nuisance:   Sees.   52  ante,  731  post. 

Act  conferring  upon  superior  judges  powers  of  probate, 
district  and  county  judges:   See  post.  Appendix,   Courts. 

§  77.  Appellate  Jurisdiction.  The  superior  courts  sliall 
Iiave  appellate  jurisdiction  in  sucla  cases  arising  in  justices' 
and  other  inferior  courts  in  ttieir  respective  counties  as 
may  be  prescribed  by  law.  En.  March  11,  1872.  Am'd. 
1880,   28. 

Cal.   Rep.   Cit     186,  636. 

Appellate  jurisdiction:  See  Const.  Cal.,  art.   8,  sec.  5. 

Appeals  to  superior  court:  See  post,  sees.   974-980. 

§  78.  Process.  The  process  of  the  superior  courts  shall 
extend  to  all  parts  of  the  state;  provided,  that  all  actions 
for  the  recovery  of  the  possession  of,  quieting  the  title  to, 
or  for  the  enforcement  of  liens  upon  real  estate,  shall  be 
commenced  in  the  county  in  which  the  real  estate,  or  any 
part  thereof  affected  by  such  action  or  actions,  is  situated. 
En.  March  11,  1872.     Am'd.  1880,  28. 

Cal.    Rep.   Cit.    136,    636. 

Process  extends  to  ail  parts  of  state:  See  Const.  Cal., 
art.    6,    sec.    5. 

Place  of  trial:  See  Const  Cal.,  art.  6,  sec.  6;  also  see. 
892,  post. 

§  79.  Transfer  of  bool<s,  papers,  and  actions.  All  rec- 
ords, books,  papers,  causes,  actions,  proceedings  and 
appeals  lodged,  deposited,  or  pending  in  the  district  court 
or  courts,  county  court,  probate  court,  municipal  criminal 
court,  or  municipal  court  of  appeals,  of,  in,  or  for  any 
county,  or  city  and  county,  of  the  state,  abolished  by  the 
constitution,  are  transferred  to  the  superior  court  of  such 
county,  or  city  and  county,  which  has  the  same  power  and 
jurisdiction  over  them  as  if  tiiey  had  been  In  the  first  in- 
stance lodf^cd,  deposited,  fllpd,  or  commenced  th<;rein,  or, 
In  cases  of  appeal,  appealed  thereto.    En.   Stats.   1880,  28. 

Transfer  of  books,  papers,  and  actions:  Bee  Const.  CaJ., 
art  22,  see.  8;   ante,  sees.  66,  66. 


49  JUSTICES'    COURTS.  §§  S0-S5 

Act  conferring  upon  superior  court,  powers  of  district, 
county,  and  probate  courts:   See  post,  Appendix,  Courts. 

Act  transferring  to  superior  court  business,  records,  etc., 
of  courts  in  existence  under  old  constitution:  See  post, 
Appendix,   Records. 

§§  80,  81.     No  such  sections. 

§  82.     En,  March  11,  1872.     Rep.  1880,  21. 

§  83.     En.  March  11,  1872.     Rep.  1880,  21. 

§  84.     En.  March  11,  1872.     Rep.  1880,  21. 

CHAPTER  V. 

JUSTICES'    COURTS. 

Article  I.     Of  Justices'   Courts  in  Cities   and   Counties,   §§ 
85-98. 
II.    Of  Justices'  Courts  in  Townships,  §§  103-107. 
III.    Justices   of  the   Peace   and   Justices'   Courts   in 
General,  §  110-115. 

ARTICLE    I. 
JUSTICES'    COURTS    IN    CITIES    AND    COUNTIES. 
85. 


Justices'   court  and  justices. 

Justices'    clerk. 

Sheriff    and    deputies. 

Offices  and  office  hoars. 

A  ctions. 

Reassignment   and    transfer   of   actions. 

Payment   of  fees. 

Certificates,    transcripts,    and   other  papers. 

Justices'    docket. 

Territorial   extent  of  Jurisdiction. 

Practice  and  rules. 

Attorneys. 

Salaries. 

What   justices   successors  of  others. 

Gen.  Cit.  to  Chap. — Cal  Rep.  Cit.  114,  332. 


§  85.  Justices'  court  and  justices.  There  shall  be  in 
every  city  an-d  county  of  more  than  one  hundred  thousand 
population  a  justices'  court,  for  which  five  justices  of  tho 
peace  shall  be  elected  by  the  qualified  electors  of  such  city 
and  county,  at  the  general  state  election  next  preceding 
the  expiration  of  the  terms  of  office  of  their  predecessors. 
Any  of  said  justices  may  hold  court,  and  there  may  be 
as  many  sessions  of  said  court  at  the  same  time  as  there 
are  justices  thereof.     The  said  justices  shall  choose  one  of 

Code   Civil   Proc— 4. 


8  88  JUSTICES'   COURTS.  iO 

their  number  to  be  presiding  justice,  who  may  at  any  time 
be  removed  and  another  appointed  in  his  place  by  a  vote 
of  a  majority  of  them;  provided,  that  in  case  of  the  tem- 
porary absence  or  disability  of  the  presiding  justice,  any 
one  of  the  other  justices,  to  be  designated  by  the  presiding 
justice,  may  act  as  presiding  justice  during  such  absence 
or  disability.  En.  March  11,  1872.  Am'd.  1873-4,  282;  1880. 
29. 

Cal.  Rep.  Cit.     52,  223;  53,  413;  53,  414;  58,  561;  114,  332. 

Number  of  justices  and  their  duties  and  powers:  See 
Const.  Oal.,  art.  6,  sec.  11. 

Act  of  March  26th,  1866,  organizing  San  Francisco  jus- 
tices' court  with  amendments  of  1869-70,  p.  56;  1871-2,  p. 
758,  governeti  in  San  Francisco  before  1880. 

Justices'   courts:  Compare   sees.   103,   110,   post. 
Act  providing  that  mayor  of  certain  cities  shall  not  act 
as  justice:   See  post.  Appendix,  Courts. 

§  86.  Justices'  clerk.  The  sui)ervisors  of  such  city  and 
county  shall  appoint  a  justice's  clerk,  on  the  written  nomi- 
nation and  recommendation  of  said  justices,  or  a  majority 
of  them,  who  shall  bold  oflBce  for  two  years,  and  until  his 
successor  is  in  like  manner  appointed  and  qualified.  Said 
justices'  clerk  shall  take  the  constitutional  oath  of  office, 
and  give  bond  in  the  sum  of  ten  thousand  dollars  for  the 
faithful  discharge  of  the  duties  of  his  office,  and  in  the 
same  manner  as  is  or  may  be  required  of  other  officers  of 
such  city  and  county.  A  new  or  additional  bond  may  be 
required  by  the  supervisors  of  such  city  and  county,  and  in 
such  amount  as  may  be  fixed  by  sai-d  supervisors,  whenever 
they  may  deem  it  necessary.  The  justices'  clerk  shall  have 
authority  tc  appoint  two  dep'Uty  clerks,  for  whose  acts  he 
shall  be  responsible  on  his  official  bond,  the  said  deputy 
clerks  to  hold  office  diiring  the  pleasure  of  said  clerk. 
Said  justices'  clerk  and  deputy  shall  have  authority  to  ad- 
minister oaths,  and  take  and  certify  affi-davits  in  any  ac- 
tion, suit,  or  proceedin-g  in  said  justices'  court.  En.  March 
11,  1872.     Am'd.   1880,  29. 

Justices'  clerks  and  deputies  in  cities  and  counties  over 
two  hundred  thousand,  act  relating  to  appointment  of:  See 
post,  Appendix,  Justices  of  the  Peace. 


51  JUSTICES'     COURTS.  5i  87,  88 

§  P7.  Sheriff  and  deputies.  The  sheriff  of  such  city  and 
couuty  sliall  be  ex  officio  an  officer  of  said  court,  and  it 
shall  be  his  duty  to  serve  or  execute,  or  cause  to  be  served 
and  executed,  each  and  every  process,  writ,  or  order  that 
may  be  issued  by  said  justices'  court;  provided,  that  a 
summons  issued  from  said  court  may  be  served  and  re- 
turned as  provided  in  section  eight  hundred  and  forty- 
nine  ot  this  code;  and  that  subpoenas  may  be  issued  by  the 
justices'  clerk,  and  served  as  provided  in  section  one 
thousand  nine  hundred  and  eighty-seven  and  one  thou- 
sand nine  hundred  and  eighty-eight  of  this  code.  The 
said  sheriff  may  appoint,  in  addition  to  the  other  deputies 
allowed  by  law,  three  deputies,  whose  duty  it  shall  be  to 
assist  said  sheriff  in  serving  and  executing  the  process, 
writs,  and  orders  of  the  said  justices'  court.  Said  depu- 
ties sliall  receive  a  salary  of  one  hundred  and  twenty- 
five  dollars  per  month  each,  payable  monthly  out  of  the 
city  and  county  treasuiy,  and  out  of  the  special  fee  fund, 
after  being  first  allowed  and  audited  as  other  demands 
are  by  law  required  to  be  audited  and  allowed.  One  of 
said  deputies  shall  remain  in  attendance  during  the  ses- 
sions of  said  court,  and  at  such  other  times  as  the  said 
court  or  the  presiding  justice  thereof  may  order  and  di- 
rect, for  the  purpose  of  attending  to  such  duties  as  may 
be  imposed  on  said  sheriff  or  said  deputies,  as  herein  pro- 
vided, or  required  by  law.  The  said  sheriff  shall  be  lia- 
ble on  his  official  bond  for  the  faithful  performance  of  all 
duties  required  of  him  or  any  of  his  said  deputies.  Eil 
March  11,  1872.     Am'd.  1880,  30. 

Sheriff  generally:   See  Pol,  Code,  sees.  4175  eq  seq. 

§  88.  Offices  and  office  hours.  The  supervisors  of  such 
city  and  county  shall  provide,  in  some  convenient  locality 
In  the  city  and  county,  a  suitable  office  or  suite  of  offices 
for  said  pi-esiding  justice,  justices'  clerk,  deputy  clerk,  and 
deputy  sheriff,  and .  offices  suitable  for  holding  sessions  of 
said  court,  and  separate  from  one  another,  for  each  of  said 
justices  of  the  peace,  together  with  attendants,  furniture, 
fuel,  lights,  and  stationery  sufficient  for  the  transrction  of 
business;  and  If  they  are  not  provided,  the  court  may  di- 
rect the  sheriff  to  provide  the  same,  and  the  expenses  in- 
•  curred,  certified  by  the  justices  to  be  correct,  shall  be  a 
charge  against  the  city  and  county  treasury,  and  ^^aid  out 
of  the  general  fund  tuereof.  The  said  justices,  justices' 
clerk,  and  deputy  clerk  shall  be  in  attendance  at  their  re- 
spective offices,  for  the  dispatch  of  official  business  daily, 


§§  so,  90  JUSTICES'    COURTS.  S2 

from  the  hour  of  eight  o'clock  a.  m.  until  &ve  o'clock  p.  m. 
En.  March  11,  1872.  Am'd.  1877-8,  95;    1880,  30. 

Cal.   Rep.   Cit     48,  90. 

§  89.  Actions.  All  actions,  suits,  and  proceedings  in 
such  city  and  county  whereof  justices  of  the  peace  or  jus- 
tices' court  have  jurisdiction,  except  those  cases  of  con- 
current jurisdiction  tl  at  may  be  commenced  in  somj  other 
court,  shall  be  entitled,  "In  the  justices'  court  of  the  city 

and  county  of  "   (inserting  the  name  of  the  city  and 

county)  and  commenced  and  prosecuted  in  said  justices' 
court,  which  shall  be  always  open.  The  original  process 
shall  be  returnable,  and  the  parties  summoned  required  to 
appear  before  the  presiding  justice,  or  before  one  of  the 
other  justices  of  the  peace,  to  be  designfsted  by  the  presid- 
ing justice,  at  his  office;  but  all  complaints,  answers,  and 
other  pleadings  and  papers  required  to  be  filed,  shall  be 
filed,  and  a  record  of  all  such  actions,  suits,  and  proceed- 
ings made  and  kept  in  the  clerk's  office  aforesaid;  and  the 
presiding  justice  and  each  of  the  other  justices  shall  have 
power,  jurisdiction,  and  authority  to  hear,  try,  and  deter- 
mine any  action,  suit,  or  proceeding  so  commenced,  and 
which  shall  have  been  made  returnable  before  him,  or 
may  be  assigned  or  transferred  to  him,  or  any  motion,' 
application,  or  issue  therein  (subject  to  the  constitutional 
right  of  trial  by  jury),  and  to  make  any  necessary  and 
proper  orders  therein.  En.  March  11,  1872.  Am'd.  1880, 
30. 

Concurrent  jurisdiction:     See  sec.  113,  post. 

Jurisdiction  of  justices'  court:   See  post,  sees.  112  et  seq. 

§  90.  Reassignment  and  transfer  of  actions.  In  case  of 
sickness  or  disability  or  absence  of  a  justice  of  the  peace 
(on  the  return  of  a  summons  or  at  the  time  appointed  for 
trial)  to  whom  a  cause  has  been  assigned,  the  presiding 
justice  shall  reassign  the  cause  to  some  other  justice,  who 
shall  proceed  with  the  trial  and  disposition  of  said  cause 
in  the  same  manner  as  if  originally  assigned  to  him;  and 
if,  at  any  time  before  the  trial  of  a  cause  or  matter  re- 
turnable or  pending  before  any  of  said  justices,  either 
party  shall  object  to  having  the  cause  or  matter  tried  be- 
fore such  justice,  on  the  ground  that  such  justice  is  a  ma- 
terial witness  for  either  party,  or  on  the  ground  oi  the 
interest,  prejudice,  or  l)ias  of  such  justice,  and  such  ob- 
jection be  made  to  appear  in  the  manner  prescribed  by 
section   eight  hundred   and   thirty-three   of  this   code,   the 


53  JUSTICES'    COUKTS.  §§  91,   S2 

said  justice  shall  suspend  proceedings,  and  the  presiding 
justice,  on  motion  and  production  before  him  of  the  affi- 
davit and  proofs,  shall  order  the  transfer  of  the  cause  or 
matter  for  trial  before  some  other  justice,  to  be  desig- 
nated by  him.  The  presiding  justice  may,  in  like  man- 
ner, assign  or  transfer  any  contested  motion,  application, 
or  issue  in  law,  arising  in  any  cause  returnable  or  pend- 
ing before  him  or  any  other  justice,  to  some  other  jus- 
tice; and  the  said  justice,  to  whom  any  cause,  matter, 
motion,  application,  or  issue  shall  be  so  as  aforesaid,  as- 
signed or  transferred,  shall  have  power,  jurisdiction,  and 
authority  to  hear,  try,  and  determine  the  same  accord- 
ingly.    En.   March   11,   1872.     Am'd.    1880,   31. 

§  91.  Payment  of  fees.  All  legal  process  of  every  kind 
in  actions,  suits  or  proceedings  in  said  justices'  court,  for 
the  issne  or  service  of  which  any  fee  is  or  may  be  allowed 
by  law,  shall  be  issued  by  the  said  justices'  clerk  upon  the 
order  of  the  presiding  justice,  or  upon  the  order  of  one  of 
the  justices  of  the  peace,  acting  as  presiding  justice,  as  in 
this  article  provided;  and  the  fees  for  issuance  and  service 
of  all  such  process,  and  all  other  fees  which  are  allowed 
by  law  for  any  official  services  of  justices,  justices'  clerks, 
or  sheriff,  shall  be  exacted  and  paid  in  advance  into  the 
hands  of  said  clerk,  and  be  by  him  daily,  or  weekly,  or 
monthly,  as  the  supervisors  may  require,  and  before  his 
salary  shall  be  allowed,  ace  ounted  for  in  , detail,  under 
oath,  and  paid  into  the  treasury  of  such  city  and  county  as 
part  of  the  special  fee  fund  thereof;  provided,  that  such 
payment  in  advance  shall  not  be  exacted  from  parties  who 
may  prove  to  the  satisfaction  of  the  presiding  justice  that 
they  have  good  cause  of  action,  and  that  they  are  not  of 
sufficient  pecuniary  ability  to  pay  the  legal  fees;  and  no 
judgment  shall  be  rendered  in  any  action  before  said  jus- 
tices' court,  or  any  of  said  justices,  until  the  fees  allowed 
therefor,  and  all  fees  for  previous  services  therein,  which 
are  destined  to  be  paid  into  the  treasury,  shall  have  been 
paid,  except  in  cases  of  poor  persons,  as  hereinbefore  pro- 
vided.    En.  Stats.  1880,  31. 

Cal.  Rep.  Cit.     107,  118;    115,  552;    126,  29. 

Fees:   See  Const  Cal.,  art.  6,  sec.  15. 

§  92,  Certificates,  transcripts,  and  other  papers.  Cases 
which  by  the  provisions  of  law  are  required  to  be  certified 
to  the  superior  court,  by  reason  of  involving  the  question 


§  93  JUSTICES'    COURTS.  M 

of  title  or  possession  of  real  property,  or  the  legality  of 
any  tax,  impost,  assessment,  toll,  or  municipal  fine,  shall 
be  so  certified  by  the  presiding  justice  and  justices'  clerk; 
and  for  that  purpose,  if  such  question  shall  arise  on  the 
trial,  while  the  case  is  pending  before  one  of  the  other  jus- 
tices, such  justice  shall  certify  the  same  to  the  presiding 
justice.  All  abstracts  and  transcripts  of  judgments  and 
proceedings  in  said  court,  or  in  any  of  the  dockets  or 
registers  of  or  deposited  in  said  court,  shall  be  given  and 
certified  from  any  of  such  dockets  or  registers,  and  signed 
by  the  presiding  justice  and  clerk,  and  shall  have  the  same 
force  and  effect  as  abstracts  and  transcripts  of  justices  of 
the  peace  in  other  cases.  Appeals  from  judgments  ren- 
dered in  said  court  shall  be  taken  and  perfected  in  the 
manner  prescribed  by  law;  but  the  notice  of  appeal,  and 
all  the  papers  required  to  be  filed  to  perfect  it,  shall  be 
filed  with  the  justices'  clerk.  Statements  on  appeals  shall 
be  settled  by  the  justice  who  tried  the  cause.  Sureties  on 
appeal,  or  on  any  bond,  or  undertaking  given  in  any  cause 
or  proceeding  in  said  court,  when  required  to  justify,  may 
justify  before  any  one  of  the  justices.     En.  Stats.  1880,  32. 

Transfer  to  superior  court:    See  sec.  838,   post. 

Appeals:   See  post,  sees.  794  et  seq. 

§  93.  Justices'  docket.  In  a  suitable  book,  strongly 
bound,  the  justices'  clerk  shall  keep  a  permanent  record  of 
all  actions,  proceedings,  and  judgments  commenced,  had, 
or  rendered  in  said  justices'  court,  which  book  shall  be  a 
public  record,  and  be  known  as  the  "justices'  docket,"  in 
which  docket  the  clerk  shall  make  the  same  entries  as  are 
provided  for  in  section  nine  hundred  and  eleven  of  this 
code,  and  which  said  docket  and  entries  therein  shall  have 
the  same  force  and  effect  as  is  provided  by  law  in  reference 
to  dockets  of  justices  of  the  peace.  To  enable  the  clerk  to 
make  up  such  docket,  each  of  the  justices  shall  keep 
minutes  of  his  proceedings  In  every  cause  returnable  be- 
fore or  assigned  or  transferred  to  him  for  trial  or  hearing; 
and  upon  judgment  or  other  disposition  of  a  cause,  such 
justice  shall  immediately  certify  and  return  the  said  min- 
utes, together  with  all  pleadings  and  papers  in  said  cause, 
to  the  clerk's  oflJce,  who  shall  immediately  thereupon  file 
the  same  and  make  the  proper  entries  under  the  title  of 
the   action    In   the    docket    aforesaid.    En.    Stats.    1880,    32 

Cal.  Rep.  Clt.     115,  85. 

Docket  generally:  Post,  sees.  911  et  seq.;  effect  of,  sec 
912. 


65  JUSTICES'    COURTS.  5§  91-98 

§  94.  Territorial  extent  of  jurisdiction.  The  jurisdic- 
tion of  the  justices'  court  of  such  city  and  county  extends 
to  the  limits  of  the  city  and  county,  and  its  process  may  be 
served  in  any  part  thereof.  En.  March  11,  1872.  Am'd. 
1880,  32.     • 

Jurisdiction:    Sees.  112  et  seq.,  925,  post. 
Process,  where  runs:  See  post,  sec.  106. 

§  95.     Practice  and   rules.    The  justices'  coxirt  and  the 

justices  of  the  peace  of  every  such  city  and  county  shall  be 
governed  in  their  proceedings  by  the  provisions  of  law 
regulating  proceedings  before  justices  of  the  peace,  so  far 
as  such  provisions  are  not  altered  or  modified  in  this 
article,  and  the  same  are  or  can  be  made  applicable  in  the 
several  cases  arising  before  them.  The  justices'  courts  of 
such  city  and  county  shall  have  power  to  make  rules  not 
inconsistent  with  the  constitution  and  laws  for  the  govern- 
ment of  such  justices'  court  and  the  officers  thereof;  but 
such  rules  shall  not  be  in  force  until  thirty  days  after  their 
publication;  and  no  rules  shall  be  made  imposing  any  tax 
or  charge  on  any  legal  proceeding,  or  giving  any  allowance 
to  any  justice  or  officer  for  services.  En.  March  11,  1872. 
Am'd.  1880,  32. 

Cal.  Rep.  Cit  107,  118, 

Provisions   applicable:    See  post,   sees.   832-926. 
Rules  of  courts  generally:    See  post,  sec.  129. 

§  96.     Attorneys.     It  shall  not  be  lawful  for  any  justice 

of  the  peace,  justices'  clerk,  or  sheriff  of  any  such  city  and 
county,  or  any  of  their  deputies,  to  appear  or  advocate,  or 
in  any  manner  act  as  attorney,  counsel,  or  agent  for  any 
party  or  person  in  any  cause,  or  in  relation  to  any  demand, 
account,  or  claim  pending,  or  to  be  sued  or  prosecuted  be- 
fore said  court  or  justices,  or  either  of  them;  nor  shall 
any  person  other  than  an  attorney  at  law  duly  admitted  to 
practice  in  courts  of  record,  be  permitted  to  appear  as  at- 
torney or  agent  for  any  party  in  any  cause  or  proceeding 
before  said  justice's  court,  or  any  of  said  justices,  unless 
he  produce  a  sufficient  power  of  attorney  to  that  effect, 
duly  executed  and  acknowledged  before  some  officer  au- 
thorized by  law  to  take  acknowledgments  of  deeds,  which 
power  of  attorney,  or  a  copy  thereof,  duly  certified  by  one 
of  the  justices  (who  on  inspection  of  the  original,  and  be- 
ing satisfied  of  its  genuineness,  shall  certify  such  copy), 


§§  97-100  JUSTICES'    COURTS.  66 

shall  be  filed  among  the  papers  in  such  cause  or  proceed- 
ing.    En.    March   11,   1872.     Ani'd.    ISSO,   33. 

Judicial  officers,  disqualifications:  Post,  sees.  170,  171, 
172. 

§  97.     Justices    of    the    peace,    San    Francisco;     salary. 

The  justices  of  the  peace  shall  receive  for  their  olncial  ser- 
vices the  following  salaries,  and  no  other  or  further  com- 
pensation, payable  monthly,  out  of  the  city  and  county 
treasury,  after  being  first  allov/ed  and  audited  as  other 
similar  demands  are  by  law  required  to  be  allowed  and  au- 
dited: To  each  of  the  justices  of  the  peace  thirty-six  hun- 
dred dollars  per  annum.  En.  March  11,  1872.  Aan'd. 
1873-4,  282;    1880,  33;     1905,  9. 

Cal.  Rep.  Clt.     56,  5G5. 

§  98.  What  justices  successors  of  others.  The  justices 
of  the  peace  elected  in  any  such  city  and  county  at  the 
general  election  of  eighteen  hundred  and  seventy-nine,  or 
persons  appointed  to  fill  their  places,  are  successors  of  the 
justices  of  the  peace  of  such  city  and  county  who  held 
ofiice  at  the  time  of  such  election;  and  all  records,  regis- 
ters, dockets,  books,  papers,  causes,  actions,  and  proceed- 
ings lodged,  deposited,  or  pending  before  the  justices' 
court  or  any  justice  of  any  such  city  and  county,  are 
transferred  to  the  justices'  court  of  such  city  and  county 
herein  provided  for,  which  shall  have  the  same  power  and 
jurisdiction  over  them  as  if  they  had  been  in  the  first  in- 
stance lodged,  deposited,  filed,  or  commenced  therein.  En. 
March  11,  1872.     Am'd.  1880,  33. 

Cal.  Rep.  Cit.     63,  80, 

Similar  provisions  with  respect  to  supreme  court:    Sec. 
55,  ante;   and  the  superior  court,  sec.  79,  ante. 
What  justices  successors  of  others:   See  post,  sec.  107. 

§  99.  En.  March  11,  1872.  Am'd.  1877-8,  97.  Rep. 
1880,  21. 

9     100.     En.  March  11,  1872.     Rep.  1880,  21. 


JUSTICES'     COURTS.  {  1<» 


ARTICLE  II. 
JUSTICES'   COURTS    IN   TOWNSHIPS. 

§  103.  Justices'   courts  and  justices,   election,   number,    qualification. 

^  104.  Courts,    where   held. 

fe  105.  What  justice   may   bold  court  for  another. 

8  106.  Territorial   extent   of   civil   jurisdiction. 

§  107.  What  justices  successors  of  others. 

§  103.  Justices'  courts,  number  of  In  townships;  elec- 
tion of  justices;  number  of  in  cities;  qualifications  of  jus- 
tices; salaries.  There  shall  be  at  least  one  justice's  court 
in  each  of  the  townships  of  the  state,  for  which  one  jus- 
tice of  the  peace  must  be  elected  by  the  qualified  electors 
of  the  township,  at  the  general  state  election  next  preced- 
ing the  expiration  of  the  term  of  office  of  his  predecessor. 
In  any  county  where,  in  the  opinion  of  the  board  of  super- 
visors, the  public  convenience  requires  it,  the  said  board 
may,  by  order,  provide  that  two  justices'  courts  may  be 
established  in  any  township,  designating  the  same  in  such 
order;  and  in  such  case  one  justice  of  the  peace  must  be 
elected  in  the  manner  herein  provided  for  each  of  such 
courts.  In  every  city  or  town  of  the  third  and  the  fourth 
class  there  must  be  one  justice  of  the  peace,  and  in  every 
city  or  town  of  the  first  and  one  half  class  there  must  be 
three  justices  of  the  peace  and  in  every  city  or  town  of  the 
second  class  there  must  be  two  justices  of  the  peace, 
to  be  elected  in  like  manner  by  the  el^ectors  of  such 
cities  or  towns,  respectively:  and  such  justices  of  the 
peace  of  cities  or  towns,  and  justices'  courts  of  cities 
or  towns,  shall  have  the  same  jurisdiction,  civil  and 
criminal,  as  justices  of  the  peace  of  townships,  and 
township  justices'  courts.  Said  justices  of  the  peace  of 
cities,  and  justices'  courts  of  cities,  shall  also  have  juris- 
diction of  all  proceedings  for  the  violation  of  any  ordi- 
nance of  any  city  in  which  courts  are  established,  both 
civil  and  criminal,  and  of  all  actions  for  the  collection  of 
any  license  required  by  any  ordinance  of  any  such  city  or 
town,  and  generally  exercise  all  powers,  duties  and  juris- 
diction, civil  and  criminal,  of  police  judges,  judges  of  the 
police  court,  recorder's  court,  or  mayor's  court  within  such 
city. 


I  103  JUSTICES'    COURTS.  68 

No  person  is  eligible  to  the  office  of  justice  of  the  peace 
in  any  city  or  town  of  the  first,  first  and  one  half,  second 
or  third  class  who  has  not  been  admitted  to  practice  law 
in  a  court  of  record;  and  no  justice  of  the  peace  is  per- 
mitted to  practice  law  before  another  justice  of  the  peace 
in  the  city,  town  or  county  in  which  he  resides,  or  to  have 
a  partner  engaged  in  the  practice  of  law  in  any  justice's 
court  in  such  city,  town  or  county.  Every  city  justice  of 
the  peace  in  any  city  or  town  of  the  fourth  class  shall 
receive  a  salary  of  fifteen  hun-dred  dollars  per  annum,  and 
every  city  justice  of  the  peace  in  any  city  or  town  of  the 
third  class  shall  receive  a  salary  of  two  thousand  dollars 
per  annum;  and  every  city  justice  of  the  peace  in  any 
dty  or  town  of  the  first  and  one  half  class  and  the  second 
class  shall  receive  a  salary  of  twenty-four  hundred  dollars 
per  annum;  and  each  city  justice  of  the  peace  shall  be 
provided  by  the  city  or  town  authorities  with  a  suitable 
oflBce  in  which  to  hold  his  court.  Where  the  compensation 
of  the  justice  of  the  peace  of  any  city  or  town  is  by  sal- 
ary, it  shall  be  paid  by  warrants  drawn  each  month  upon 
the  salary  fund,  or,  if  there  be  no  salary  fund,  then  upon 
the  general  fund,  of  such  city  or  town;  such  warrants  to 
be  audited  and  paid  as  salaries  of  other  city  oflicials.  All 
fees  which  are  chargeable  by  law  for  services  rendered 
by  such  city  justices  of  the  peace  in  the  cities  or  towns 
aforesaid  shall  be  by  them,  respectively,  collected,  and  on 
the  first  Monday  of  each  month  every  such  city  or  town 
justice  of  the  peace  shall  make  a  report,  under  oath,  to 
the  city  or  town  treasurer,  of  the  amount  of  fees  so  by 
him  collected,  and  pay  the  amount  so  collected  into  the 
city  or  town  treasury,  to  the  credit  of  the  general  fund 
thereof.  Said  salaries  shall  be  the  sole  compensation  of 
said  city  justices.  En.  Stats.  1880,  34.  Am'd.  1891,  456; 
1899,  88;  1900-01,  100;  1903,  210;  1905,  49;  1905,  50. 

There  were  two  amendments  of  this  section  enacted  on  the  same  day, 
March  3,  1905  (Stats.  1905,  pp.  49,  50).  They  were  'identical  In  lan- 
guage but  one  was  to  go  into  effect  Imme-diately,  and  the  other  on  the 
first   Monday   after  the   flrst  day   of   January,    1907. 

Cal.   Rep.   Cit     58,  561;     58,   574;     58,  575;     58,   577;     59, 
599;    67,  033;    73,  506;    85,  596;    102,  17;    133,  76. 

Eligibility  of  justices  of  the  peace:  See  post,  sec.  159. 
Disabilities:  See  post,  sees.  170  et  seq. 
Fees:  See  Const.  Cal.,  art.  6,  sec.  15. 
Act  providing  that  mayor  in  certain  cities  shall  not  act 
as  justice:  See  post,   Appendix,   Courts. 


U  JUSTICES'     COURTS.  88  io*-m 

Creation  of  justices'  courts  in  various  places:  See  post. 
Appendix,  Justices  of  the  Peace. 

Act  fixing  jurisdiction  and  providing  compensation  for 
justices  in  cities  and  towns:  See  post,  Appendix,  Justices 
of  the  Peace. 

§  104.  Courts,  where  held.  A  justice's  court  may  be 
held  at  any  place  selected  by  the  justice  holding  the  same, 
in  the  township  for  which  he  is  elected  or  appointed;  and 
such  court  shall  be  always  open  for  the  transaction  of 
business.     En.    March    11,    1872.     Am'd.    1880,    34. 

Hours  of  justice:   See  ante,  sec.  88. 

§  105.  What  Justice  may  hold  court  for  another.  A  jus- 
tice of  the  ped/ce  of  any  township,  or  city,  or  city  and 
county  may  hold  the  court  of  any  other  justice  of  the  peace 
of  any  township,  city  and  county,  or  city  within  the  same 
county,  at  his  written  request,  and  while  so  acting  shall 
be  vested  with  all  the  powers  of  the  justice  for  wham  he 
so  holds  court.  In  which  case  the  proper  entry  of  the  pro- 
ceedings before  the  attending  justice  subscribed  by  him 
shall  be  made  in  the  docket  of  the  justice  for  whom  he  so 
holds  the  court;  and  the  same  shall  be  prima  facie  evidence 
of  such  proceedings,  and  form  and  become  a  part  of  the 
record  of  any,  or  any  part  of  any  and  all  actions,  causes,  or 
proceedings  had  before  such  attending  justice  while  so 
holding  the  court.  En.  March  11,  1872.  Am'd.  1880,  34; 
3.S97,  8. 

Cal.  Rep.  Cit.    98,  240;    116,  507. 

With  respect  to  superior  courts:  See  sec  71,  ante. 

§  106.     Territorial  extent  of  civil  jurisdiction.     The  civil 

jurisdiction  of  justices'  courts  extends  to  the  limits  of  the 
townships  in  which  they  are  held;  but  mesne  and  final 
process  of  any  justices'  court  In  a  county  may  be  issued  to 
and  served  in  any  part  of  the  county.  En.  March  11,  1872. 
Am'd.   1880,   34. 

Oal.   Rep.   Clt.    66,  443. 

Jurisdiction:  See  sec.  94,  ante,  and  post,  sees.  112  et  seq. 
Process,  where  runs:  See  ante,  sec.   96. 

§  107.  What  Justices  successors  of  others.  The  justices 
of  the  peace  elected  in  the  townships  at  the  general  state 
election  of  eighteen  hundred  and  seventy-nine,  or  persons 


§§  108-115  JUSTICES'    COURTS.  ?0 

appointed  to  fill  their  places,  are  successors  of  the  justices 
of  the  peace  of  the  townships,  respectively,  who  held  office 
at  the  time  of  such  election;  and,  in  case  the  townships  of 
any  county  are  hereafter  changed  or  altered,  the  board  of 
supervisors  of  such  county  shall  make  provision  as  to  what 
Justices  shall  he  successors  of  the  justices  of  townships  so 
changed  or  altered.    En.   March  11,  1872.    Am'd.  1880,  34. 

Cal.  Rep.  Cit.    148,  247. 

§  108.     Bn.  March  11,  1872.    Rep.  1880,  21. 

§  109.    En.  March  11,  1872.     Rep.  1880,  21. 

ARTICLE    III. 

JUSTICES  OF  THE  PEACE  AND  JUSTICES  COURTS  IN 
GENERAL. 

110.  Terms  of  office. 

111.  Vacancies. 

112.  Civil   jurisdiction. 

113.  Concurrent  Jurisdiction. 

114.  Civil   jurisdiction   restricted. 

115.  Criminal    Jurisdiction. 

§  no.    Terms  of  office.    The  term  of  office  of  justices 

of  the  peace  nhall  be  four  years  from  and  after  twelve 
o'clock  meridian  on  the  first  Monday  after  the  first  day 
of  January  next  succeeding  their  election.  En.  March  11, 
1872.     Am'd.  1880,  35;    1900-01,  630. 

Cal.  Rep.  Cit    58,  561;    66,  10;    67,  633;    102,  17;    133,  76; 
133,   77. 

§  111.  Vacancies.  If  a  vacancy  occurs  in  the  office  of  a 
justice  of  the  peace,  the  board  of  supervisors  of  the  county 
shall  appoint  an  eligible  person  to  hold  the  office  for  the 
remainder  of  the  unexpired  term.    En.   Stats.   1880,  85. 

Cal.  Rep.  Cit.  102,  15;  102,  16;  102,  17;  102,  18;  12*i. 
139;    133,   75;    133,   76. 

§  112.  Civil  Jurisdiction.  The  justices'  courts  shall 
have    civil    jurisdiction: 

1.  In  actions  arising  on  contract  for  the  recovery  of 
money  only  if  the  sum  claimed,  exclusive  of  Interest,  does 
not    amount   to   three   hundred   dollars; 

2.  lu  actions  for  damages  for  Injury  to  the  person,  or  for 
takln-g,    detaining,    or  Injuring   personal   property,   or  tor 


ex  JUSTICES'    COURTS.  §  113 

injury  to  real  property  where  no  issue  is  raised  by  tlie  veri- 
fied answer  of  the  defendant  inYolvlng  the  title  to  or  pos- 
session of  the  same,  if  the  damage  claimed  do  not  amount 
to    three   hundred    dollars; 

8.  In  actions  to  recover  the  possession  of  personal  prop- 
erty, if  the  value  of  such  property  does  not  amount  to 
three  hundred   dollars; 

4.  In  actions  for  a  fine,  penalty,  or  forfeiture,  not 
amounting  to  three  hundred  dollars,  given  by  statute,  or 
the  ordinance  of  an  Incorporated  city  and  county,  city 
or  town,  where  no  issue  is  raised  by  the  answer  involving 
the  legality  of  any  tax.  Impost,  assessment,  toll,  or  muni- 
cipal  fine; 

5.  In  actions  upon  bonds  or  undertakings  conditioned 
for  the  payment  of  money,  If  the  sum  claimed  does  not 
amount  to  three  hundred  dollars,  tliough  the  penalty  may 
exceed   that   sum; 

6.  To  take  and  enter  Jud'gment  for  the  recovery  of  money 
on  the  confession  of  a  defendant,  when  the  amount  con- 
fessed, exclusive  of  Interest,  -does  not  amount  to  three 
hundred  dollars.     En.   March   11,   1872.     Am'ti.   1880,  35. 

Cal.  Rep.  Cit.  60,  427;  69,  557;  91,  549;  97,  97;  102,  17; 
111,  422;  189,  406.  Subd.  1—127,  559.  Subd.  2—135, 
68.     Subd.  4—80,  41;    130,  99. 

Local  and  special  legislation  with  respect  to  Jurisdiction 
of  justice  is  prohibited  by  article  4,  section  25,  constitution 
of  1879. 

§  113.  Concurrent  Jurisdiction.  The  justices'  courts 
shall  have  concurrent  jurisdiction  with  the  superior  courts 
within  their  respective  townships: 

1.  In  actions  of  forcible  entry  and  detainer,  where  the 
rental  value  of  the  property  entered  upon  or  unlawfully 
detained  dees  not  exceed  twenty-five  dollars  per  month, 
and  the  whole  amount  of  damages  claimed  does  not  exceed 
two  hundred  dollars; 

2.  In  actions  to  enforce  and  foreclose  liens  on  personal 
property,  where  neither  the  amount  of  the  liens  nor  the 
value  of  the  property  amounts  to  three  hundred  dollars. 
En.  March  11,  1872.     Am'd.  1877-8,  97;   1880,  35. 

Cal.  Rep.  Clt    90,  502;    130,  98;    130,   99.    Subd.   1—137, 
604. 


§^    114-119  JUSTICES'    COURTS.  62 

Concurrent  jurisdiction:   See   Const.   Cal.,  art.   6,   sec.   11. 
Forcible  entry:   See  post,  sees.   1159  et  seq. 

§  114.  Civil  jurisdiction  restricted.  Except  as  in  the 
last  preceding  section  provided,  ttie  jurisdiction  of  tiie 
justices'  courts  shall  not,  in  any  case,  trench  upon  the 
jurisdiction  of  the  several  courts  of  record  of  the  state, 
nor  extend  to  any  action  or  proceeding  against  ships,  ves- 
sels, or  boats,  for  the  recovery  of  seamen's  visages  for  a 
voyage  performed  in  whole  or  in  part  without  the  waters 
of  this  state.     En.   March   11,   1872.     Am'd.   1880,   36. 

Cal.  Rep.  Cit.    55,  267. 

Not  to  trench  upon  jurisdiction  of  courts  of  record:  See 
Const.    Cal.,   art.    6,   sec.    11. 
Actions  against  vessels:   Sees.  813  et  seq. 

§  115.  Criminal  jurisdiction.  The  justices'  courts  shall 
have  juris'diction  of  the  following  public  offenses  com- 
mitted within  the  respective  counties  in  wMch  such  courts 
are    established: 

1.  Petit    larceny; 

2.  Assault  or  battery  not  charged  to  have  been  com- 
mitted upon  a  jmblic  officer  in  the  discharge  of  his  duties, 
or  to  have  beea  committed  with  such  intent  as  to  render 
the  offense  a  felony; 

3.  Breaches  of  the  peace,  riots,  routs,  affrays,  committing 
a  willful  injury  to  property,  and  all  misdemeanors  punish- 
able by  fine  not  exceeding  five  hundred  dollars,  or  imprison- 
ment not,  exceeding  six  months,  or  by  both  such  fine  and 
imprisonment.  En.  March  11,  1872.  Am'd.  1873-4,  399: 
1880,  36. 

Cal.   Rep.  Cit.     60,  104;    60,  152;    66,  4;    68,  413;    93,  236; 
96,   365;    97,   528;    115,   54. 

Act  conferring  power  to  act  as  police  judges:  See  post. 
Appendix,  Justices   of  the   Peace. 

§  116.     En.  March  11,  1872.     Rep.  1880,  21. 

§  117.  En.  March  11,  1872.  Am'd.  1873-4,  283';  1875-6, 
85.     Rep.  1880,  21. 

Cal.    Rep.    Cit.     53,    413. 

§  118.     Bn.  March  11,  1872.     Rep.  1880,  21. 

§  119.     En.   Stats.  1873-4,  282.     Rep.   1880,  21. 


S3  POLICE    COURTS— GENERAjO    PROVISIONS.  55  121-125 

CHAPTER    VI. 
POLICE   COURTS. 

§  121.     Provided    for    in    Political    Code. 

§  121.     Provided  for  In  Political  Code.     Police  courts  are 

established  in  incorporated  cities  and  counties,  cities,  and 
towns,  and  their  organization,  jurisdiction,  and  powers 
provided  for  in  the  Political  Code,  part  four.  En.  March 
11,   1872.     Am'd.    1880,   36. 

Cal.   Rep.   Clt.     66,   4;    99,   510. 

Proceedings  in  civil  actions:   See  post,  sees.  929  et  seq. 

Police  c»urts  generally,  their  organization  and  jurisdic- 
tion:  See  Pol.  Code,  sees.  4424  et  seq. 

Act  providing  that  mayors  in  certain  cities  shall  not  be 
required  to  act  as  police  judge:   See  post.  Appendix,  Courts. 

Act  transferring  business  to  after  new  constitution:  See 
post.   Appendix,   Records. 

CHAPTER    VII. 

GENERAL.   PROVISIONS    RESPECTING    COURTS    OP    JUSTICE. 

Article    I.    Publicity   of  Proceedings,    §§    124,    125. 

n.    Incidental   Powers   and   Duties  of   Courts,    §§    128-131. 
ni.    Judicial   Days,    §§    133-136. 

rv.    Proceedings   In    Case   of   Absence   of  Judge,    §§    139,    146. 
V.    Provisions    Respecting    Places    of    Holding    Courta,     §§     142- 
144. 
VI.    Seals  at  Conrts,    §§   147-153. 

ARTICLE    I. 
PUBLICITY    OP   PROCEEJDINGS. 

8  124.     Sittings,    pnbllo. 
§  125.     Sittings,   private. 

§  124.  Sittings,  public.  The  sittings  ol  every  court  of 
justice  shall  be  public,  except  as  provided  in  the  next 
secUon.     En.  March  11,  1872.     Am'd.  1880,  36. 

U.  S.  Const.,  art.  6,  see.  1,  ajndts. 

§  125.  Sittings,  when  private.  In  an  action  for  divorce, 
criminal  conversation,  seduction,  or  breach  of  promise  of 
marriage,  the  court  may  direct  the  trial  of  any  issue  of 
fact  joined  therein  to  be  private,  and  may  exclude  aD  per- 


§  128  GENERAL    PROVISIONS.  8* 

sons  except  the  officers  of  the  court,  the  parties,  their 
witnesses,  and  counsel;  provided,  that  in  any  cause  the 
court  may,  in  the  exercise  of  a  sound  discretion,  ■during 
the  exammafion  of  a  witness,  exclude  any  or  all  other 
witnesses  in  the  cause.  En.  March  11,  1872.  Am'd.  1873-4, 
284;    1880,    36. 

Cal.  Rep.  Cit.     43,  208;   99,  529;   99,  531;   103,  245. 

Records  in  divorce  and  attachment  proceedings  to  be 
kept   secret:   See   Pol.    Code,   sec.    1032. 

Exclusion   of   witnesses:  Post,   sec.    2043. 

ARTICLE    II. 
ESTCIDENTAL  POWERS  AND  DUTIES  OF  COURTS. 

8  128.  Powers   respecting   conduct   of  proceedings. 

I  129.  Courts  of  record  may  make  rales. 

§  130.  When   rules  take  effect. 

§  131.  Probationary   treatment  of  Juvenile  offenders. 

§  128.  Powers  respecting  conduct  of  proceedings.  Every 
court   shall    have    power: 

1.  To  preserve  and  enforce  order  in  its  immediate  pres- 
ence; 

2.  To  enforce  order  in  the  proceedings  before  it,  or  be- 
fore a  person  or  persons  empowered  to  conduct  a  judicial 
investigation    under    its    authority; 

3.  To  provide  for  the  orderly  conduct  of  proceedings 
before   it,   or  its  officers; 

4.  To  compel  obedience  to  its  judgments,  orders  and 
process,  and  to  the  orders  of  a  judge  out  of  court,  in  an 
action   or   proceeding   pending   therein; 

5.  To  control  in  furtherance  of  justice,  the  conduct  of  its 
ministerial  officers,  and  of  all  other  persons  in  any  manner 
connected  with  a  judicial  proceeding  before  it,  in  every 
matter  appertaining   thereto; 

6.  To  compel  the  attendance  of  persons  to  testify  in  an 
action  or  proceeding  pending  therein,  in  the  cases  and  man- 
ner  provided   in   this   code; 

7.  To  administer  oaths  in  an  action  or  proceeding  pend- 
ing therein,  and  in  all  other  cases  where  it  may  be  neces- 
sary in  the  exercise  of  its  powers  and  duties; 

8.  To  amend  and  control  its  process  and  orders  so  as  to 
make  them  conformable  to  law  and  justice.  En.  March 
11,   1872.     Am'd.    1880,    37. 

Cal.  Rep.  Cit.  47,  134;  53,  207;  54,  237;  64,  345;  79,  602; 
9G,  6;  112,  643.  Subd.  5—140,  10.  Subd.  6—140,  10. 
Subd.  8— S2,  468. 


65  GENERAL    PROVISIOXS.  §§  129-131 

Power  of  judicial   officers:   See   post,   sec.    177. 

Contempt:  See  post,  sec.  1209;  in  justice's  court:  See 
sees.    906   et   seq. 

Subd.  6.  Attendance  of  witnesses:  See  post,  sees.  1985 
et   seq. 

SuM.  7.  Administration  of  oaths:  See  post,  sees.  2093 
et   seq. 

§  129.  Courts  of  record  may  make  rules.  Every  court 
of  record  ni^y  make  rules  not  inconsistent  with  the  laws  of 
this  state,  for  its  own  government  and  the  government  of 
its  officers;  but  sudh  rules  shall  neither  impose  any  tax  or 
charge  upon  any  legal  proceeding,  nor  give  any  allowance 
to  any  officer  for  services.  En.  March  11,  1872.  Am'd. 
1880,  37. 

Cal.  Rep.  Cit     81,  483;    86,  432. 

Prac,   Act,   sec.   643.     En.   April   29,  1851. 
When  rules  take  effect:  Sec.   130. 

§  130.  When  rules  take  effect.  Rules  adopted  by  the 
supreme  court  shall  take  effect  sixty  days,  and  rules 
adopted  by  superior  courts,  thirty  days  after  their  publi- 
cation.    En.   March  11,  1872.     Am'd.   1880,  37. 

§  131.     Probationary    treatment    of    juvenile    offenders. 

1.  The  judge  of  the  superior  court  in  and  for  each 
county  or  city  and  county  of  the  state,  or  where  there 
are  more  than  one  judge  of  said  court,  a  majority  of 
the  judges  thereof  by  an  order  entered  in  the  minutes  of 
snch  court,  may  appoint  seven  discreet  citizens  of  good 
moral  character,  and  of  either  sex,  to  be  known  as  pro- 
bation committee,  and  shall  fill  all  vacancies  occurring  in 
such  committee.  The  clerk  of  said  court  shall  immedi- 
ately notify  each  person  appointed  on  said  committee  and 
thereupon  said  persons  shall  appear  before  the  judge  of 
said  superior  court  in  said  county  and  qualify  by  taking 
oath,  to  be  entered  in  the  minutes  of  said  superior  court, 
to  faithfully  perform  the  duties  of  a  member  of  such  pro- 
bation committee. 

2.  The  members  of  such  probation  committee  shall  hold 
office  for  four  years,  and  until  their  successors  are  ap- 
pointed, provided  that  of  those  first  appointed,  one  shall 
hold  office  for  one  year,  two  for  two  years,  two  for  three 
years,  and  two  for  four  years,  the  terms  for  which  the 
respective  members  first  appointed  shall  hold  office  to  be 

Cod«  Civil  Ptoc— fi. 


§  m  GENERAL   PROVISIONS.  W 

determined  by  !ot  as  soon  after  their  appointment  as  may, 
be.  When  any  vacancy  occurs  in  any  probation  com- 
mittee by  expiration  of  the  term  of  office  of  any  member 
thereof,  the  successor  shall  be  appointed  to  hold  for  the 
term  of  four  years;  when  any  vacancy  occurs  for  any 
other  reason,  the  appointee  shall  hold  for  the  unexpired 
term    of    his    predecessor. 

3.  The  members  of  the  probation  committee  shall  serve 
without  compensation. 

4.  The  superior  court  or  any  judge  thereof  may  at  any 
time  require  said  probation  committee  or  a  probation 
officer  to  examine  into  the  qualifications  and  management 
of  any  society,  association  or  corporation,  other  than  a 
state  institution,  applying  to  receive  any  chiM  or  children 
under  this  act,  and  to  report  to  the  court,  provided  that.| 
nothing  iu  this  section  shall  be  construed  as  giving  anyj 
probation  committee  or  probation  officer  any  power  to^ 
enter  any  institution  without  the  consent  of  such  insti- 
tution. 

It  shall  be  the  duty  of  each  probation  committee  prior 
to  December  first  in  each  year  to  prepare  a  report  in  writ- 
ing on  the  qualifications  and  management  of  all  societies, 
associations  and  corporations,  except  state  institutions,  ap- 
plying for  or  receiving  any  child  under  this  act  from  the 
courts  of  their  respective  counties,  an-d  in  said  report  said 
committee  may  r.'ialve  such  suggestions  or  comments  as  to| 
them  may  seem  fit;  said  report  to  be  filed  in  the  office 
of  the  clerk  of  the  court  appointing  such  committee,  for 
the  information  of   the  judges  thereof. 

5.  In  counties  of  the  first  class  there  shall  be  one  proba- 
tion officer  and  not  more  than  five  deputy  probation  offi- 
cers; in  counties  of  the  second  class,  one  probation  officer 
and  not  more  than  one  deputy  probation  officer;  in  all 
other  counties  there   shall   be  one   probation  officer. 

In  any  county  or  city  and  county  additional  deputy  pro- 
bation officers  may  be  appointed  and  their  appointment  ap- 
proved or  disapproved  as  hereinafter  provided,  from  time 
to  time  when  in  the  opinion  of  the  court  it  may  be  neces- 
sary, provided  that  they  serve  without  salary. 

6.  The  probation  officer  and  deputy  probation  officers  in 
all  the  counties  of  the  state  shall  be  allowed  such  necessary 
incidental  expenses  as  may  be  authorized  by  a  judge  of  the 
superior  court;  and  the  same  shall  be  a  charge  upon  the 
county  in  which  the  court  appointing  them  has  jurisdic- 
tion, and  the  said  expenses  shall  be  paid  out  of  the  county 
treasury  upon  a  warrant  therefor  issued  by  the  said  court. 


67  GENERAL  PROVISIONS.  S  131 

7.  The  offices  of  probation  officers  and  deputy  probation 
officers  are  hereby  created.  The  appointments  of  proba- 
tion officers  and  deputy  probation  officers  to  serve  here- 
under in  any  county  or  city  and  county  shall  be  made 
by  the  probation  committee  of  said  county  or  city  and 
county  from  discreet  citizens  of  good  moral  character. 
The  appointments  by  each  probation  committee  shall  be 
made  in  writing,  signed  by  a  majority  of  the  members 
of  such  committee,  and  filed  with  the  county  clerk  of 
such  countj',  and  shall  be  subject  to  and  shall  take  effect 
upon  approval  by  the  judge  of  the  superior  court  appoint- 
ing such  committee,  or  by  a  majority  of  the  judges  thereof 
if  there  be  more  than  one;  such  approval  to  be  by  order 
entered  in  the  minutes  of  said  court.  The  term  of  office 
of  probation  officers  ajQd  of  deputy  probation  officers  shall 
be  two  years  from  the  date  of  the  said  approval  of  their 
several  appoint caents,  such  probation  officers  and  deputy 
probation  officers  may  at  any  time  be  removed  by  the 
judge   approving  their  appointment   in   his   discretion. 

8.  Any  of  the  duties  of  the  probation  officer  may  be 
performed  by  a  deputy  probation  officer  and  shall  be  per- 
formed by  him  whenever  detailed  to  perform  the  same 
by  the  probation  officer;  and,  it  shall  be  the  duty  of  the 
probation  officer  to  see  that  the  deputy  probation  officer 
performs  his  duties. 

y.  It  is  the  intention  of  this  act  that  the  same  proba- 
tion committees,  the  same  probation  officers  and  deputy 
probation  officers  shall  be  appointed  and  serve  under  this 
act  as  under  the  act  known  as  the  juvenile  court  act, 
and  entitled  "An  act  defining  and  providing  for  the  con- 
trol, protection  and  treatment  of  dependent  and  delin- 
quent children;  prescribing  the  powers  ajbd  duties  of 
courts  with  respect  thereto;  providing  for  the  appointment 
of  probation  officers,  and  prescribing  their  powers  and 
duties;  providiug  for  the  separation  of  children  from 
adults  when  confined  in  jails  or  other  institutions;  pro- 
viding for  the  appointment  of  boards  to  investigate  the 
qualifications  of  organizations  receiving  children  under  this 
act,  and  prescribing  the  duties  of  such  boards;  and  pro- 
viding when  proceedings  under  this  act  shall  be  admissible 
in  evidei^-e,"  and  approved  February  26,  1903;  or  under 
any  laws   amending  or  superseding  the  same. 

10.  Either  at  the  time  of  the  arrest  for  crime  of  any 
person  over  sixteen  years  of  age,  or  at  the  time  of  the 
plea   or    verdict    of   guilty,    the     probation    officer    of    the 


§  m  GENERAL    PROVISIONS.  88 

county  of  the  jurisdiction  of  sai'l  crime  shall,  when  so 
directed  by  the  court,  inquire  into  the  antecedents,  char- 
acter, history,  family  environment  and  offense  of  such 
person,  and  must  report  the  s^nme  to  the  court  and  file 
his  report  in  writing  in  the  records  of  said  court.  His 
report  shall  contain  his  recoDj  uendation  for  or  against 
the  release  of  such  person  on  p-  obation.  If  any  such  per- 
son shall  be  released  on  proba  on  and  committed  to  the 
care  of  the  probation  officer,  su  i  ofBcer  must  keep  a  com- 
plete and  accurate  record  in  si  able  books  of  the  history 
of  the  case  in  court  and  of  the  n  Jie  of  the  probation  officer, 
and  his  acts  in  connection  with  said  case;  also  the  age; 
sex;  nativity;  residence;  education;  habits  of  temperance; 
whether  married  or  single;  and  the  conduct,  employment 
and  occupation  and  parents'  occupation  and  condition  of 
such  person  so  committed  to  his  care  during  the  term  of 
such  probation,  and  the  result  of  such  probation,  which 
record  shall  be  and  constitute  a  part  of  the  records  of  the 
court'  and  shall  at  all  times  be  open  to  the  inspection  of 
the  court  or  any  person  appointed  by  the  court  for  that 
purpose,  as  well  as  of  all  magistrates  and  the  chief  of 
police  or  other  head  of  the  police,  unless  otherwise  ordered 
by  the  court.  The  said  books  of  record  shall  be  fur- 
nished by  the  county  clerk  of  said  county,  and  shall  bo 
paid  for  out  of  the  county  treasury. 

11.  The  prohibition  officer  shall  furnish  to  each  person 
released  on  probation  and  committed  to  his  care,  a  writ- 
ten statement  of  the  terms  and  conditions  of  his  proba- 
tion, and  shall  report  to  the  court,  judge,  or  justice  ap- 
pointing him,  any  violation  or  breach  of  the  terms  and 
conditions  imposed  by  such  court  on  the  i>erson  placed 
in  his  care. 

12.  The  probation  officers  and  deputy  probation  ofticers 
appointed  under  this  section  shall  serve  as  such  probation 
officers  in  all  courts  having  original  jurisdiction  of  crim- 
inal actions  in  this  state. 

13.  Snch  probation  officer  and  each  deputy  probation 
officer  shall  ha-\'e,  as  to  the  person  so  committed  to  the 
care  of  such  probation  officer  or  deputy  probation  officer, 
the  powers  of  a  peace  officer.  En.  Stats.  1903,  36.  Am'd. 
1905,  780. 


GENERAL    FUOVISIONS.  |§  133,  134 


ARTICLE   III. 
'judicial  days. 


8  133.    Days   on   which    courts,    etc.,    may    be    held. 

§  134.     Nonjudicial    days. 

§  135.     Appointments    on   nonjudicial    days. 

§  133.  Days  on  which  courts,  etc.,  may  be  held.  Courts 
of  justice  may  be  held  and  judicial  business  transacted  on 
any  day,  except  as  provided  in  the  next  section.  En.  March 
11,  1872.     Am'd.  1880,  37. 

Cal.  Rep.  Cit.     57,  406;  63,  421;  65,  621;  97,  392;  112,  610; 
112,    611. 

§  134.     Nonjudicial   days.     No  court  shall  be  oi)en,  nor 

shall,  any  judicial  business  be  transacted,  on  Sunday,  on 
thQfCrst  day  of  January,  on  the  twenty-second  day  of 
February,  on  the  thirtieth  day  of  May,  on  the  fourth  day 
of  July,  on  the  ninth  day  of  September,  on  the  first  Mon- 
day of  September,  on  the  twenty-fifth  day  of  Etecember, 
on  a  day  upon  which  an  election  is  held  throughout  the 
state,  or  by  the  governor  of  this  state,  for  a  public  fast, 
thanksgiviirg,  or  holiday,  except  for  the  following  pur- 
poses: 

1.  To  give,  upon  their  request,  instructions  to  a  jury 
when    deliberating   on    their    verdict. 

2.  To  receive  a  verdict  or  discharge  a  jury. 

3.  For  the  exercise  of  the  powers  of  a  magistrate  in  a 
criminal  action,  or  in  a  proceeding  of  a  criminal  nature. 

Provided,  that  the  supreme  court  and  the  superior  courts 
shall  always  be  open  for  the  transaction  of  business;  and 
provided  further,  that  injunctions  and  writs  of  prohibition 
may  he  issued  and  served  on  any  day.  En.  March  11, 
1872.     Am'd.  1830,  38;   1889,  46;   1893,  186;   1897,  15. 

Cal.   Rej).   Cit.     57,   406;    63,   421;    65,   621;    112,  610;    112, 
611;    138,  219;    147,  777. 

Holidays*   Sec.-3.    10-13,    ante. 

Courts  always  open:  Const.  Cal.,  art.  6,  sec.  5;  sees.  47, 
73,  104,  ante. 

Injunctions  and  writs  of  prohibition,  issuance  of,  on 
nonjudicial  days:  Ante,  sec.  76,  subd.  5;  and  Const.  Cal., 
art.  6,  sec.  5. 


§§   135-140  GENERAL,    PROVISIONS.  70 

§  135.     Appointments  on   nonjudicial   days.    If  any   day 

mentioned  in  the  last  section  happen  to  be  the  day  ap- 
pointed for  the  holding  or  sitting  of  a  coirt,  or  to  which 
it  is  adjourned,  it  shall  be  deemed  appointed  for  or  ad- 
journed to  the  next  day.  En.  March  11,  1872.  Am'd.  1880, 
38. 


ARTICLE    rV. 

PROCEEDINGS    IN    CASE    OF   ABSENCE    OF    JUDGB. 

8  139.    Adjournment  for  absence  of  Judge. 

§  140.     Adjournment    till    next    regular    session. 

§  139.  Adjournment  for  absence  of  judge.  If  no  judge 
attend  on  the  day  appointed  for  the  holding  or  sitting  of  a 
court,  or  on  the  day  to  which  it  may  have  been  adjourned, 
before  noon,  the  sheriff  or  clerk  shall  adjourn  the  same 
until  the  next  day,  at  10  o'clock  a.  m.,  and  if  no  judge 
attend  on  that  day,  before  noon,  the  sheriff  or  clerk  shall 
adjourn  the  same  until  the  following  day  at  the  same  hour, 
and  so  on,  from  day  to  -day  for  one  week,  unless  the  judge, 
by  written  order,  directs  it  to  be  adjourned  to  some  day 
certain,  fixed  in  said  order,  in  which  case  it  shall  be  so 
adjourned.    En.   March  11,  1872.    Am'd.  1880,  38. 

Nonjudicial  day:  Sees,  134,  135. 

§  140.     Adjournment    til!    next    regular    session.     If    no 

jud-ge  attend  for  one  week,  and  no  written  order  be  made, 
as  provided  in  the  last  section,  the  sheriff  or  clerk  shall 
adjourn  the  session  until  the  time  appointed  for  the  hold- 
ing of  the  next  regular  session.  En.  March  11,  1872. 
Am'd.  1880,  38. 

Sessions:  Ante,  sec.   73. 


GKNERAL    PROVISIONS,  §§llii44 


ARTICLE    V. 

PROVISIONS  RESPECTING  PLACES  OF  HOLDING  COURTS. 

5  142.     Change   in   certain  cases  of  place   of  holding   court. 
8  143.     Parties   to   appear  at   place   appointed. 
§  144.    When  sheriff   to   provi'de  courtrooms,    etc. 

§  142.    Change  in  certain  cases  of  place  of  holding  court. 

The  judge  or  judges  authorized  to  hold  or  preside  at  a 
court  appointed  to  be  held  at  a  particular  place  iu  a  city 
and  county,  county,  city,  or  town,  may,  by  an  order  filed 
with  the  city  and  county  or  county  clerk,  and  published  as 
he  or  they  may  prescribe,  direct  thai  the  court  be  held  or 
continued  at  any  other  place  in  the  city  and  county,  county, 
city  or  town  than  that  appointed,  when  war,  insurrection, 
pestilence,  or  other  public  calamity,  or  the  danger  thereof, 
or  the  destiiiction  or  danger  of  the  building  appointed  for 
holding  the  court,  may  render  it  necessary;  and  may,  in 
the  same  manner,  revoke  the  order,  and  in  his  or  their  dis- 
cretion, appoint  another  pl£,ce  in  the  same  city  and  county, 
county,  city  or  town,  for  holding  the  court.  En.  March 
11,   1872.     Am'd.   1880,   38. 

§  143.  Parties  to  appear  at  pJace  appointed.  "Wien  the 
court  is  held  at  a  place  appointed,  as  provided  in  the  last 
section,  every  person  lield  to  appear  at  the  court  must 
appear  at  the  plac€i  so  appointed.  En.  March  11,  1872. 
Am'd.    1880,    39. 

§  144.     When    sheriff    to    provide    court-rooms,    etc.     If 

suitable  rooms  for  holding  the  superior  courts  and  the 
chambers  of  the  judges  of  said  courts  be  not  provided  in 
any  city  and  county,  or  county,  by  the  supervisors  thereof, 
together  with  the  attendants,  furniture,  fuel,  lights,  and 
stationery  sufficient  for  the  transaction  of  business,  the 
courts,  or  the  judge  or  judges  thereof,  may  direct  the 
sheriff  of  the  city  and  county,  or  county,  to  provide  such 
rooms,  attendants,  furniture,  fuel,  lights,  and  stationery, 
and  the  expenses  incurred,  certified  by  the  judge  or  judges 
to  be  correct,  shall  be  a  charge  against  the  city  and 
county  treasury,  rnd  paid  out  of  the  general  fund  thereof. 
En.   March   11,   1S72.     Am'd.   1880,   39. 

Cal.  Rep.  Cit.     C4,  245;    91,  3G7;   93,  382;    93,  383;    9G,  53. 


§§  147-li8  GENERAL,   PROVISIONS. 


ARTICLE  VI. 

SEALS    OF    COURTS. 

8  147.  What  oourtB  shall   have  seals 

S  148.  Seal    of    supreme    court. 

8  149.  Seals   of  superior  courts. 

g  150.  Seals   of   police   courts   of   cities   and   counties. 

I  161.  Seals,    how   provided;    private   seals,    when   uae\l. 

8  152.  Clerk  of  court  to  keep  seal. 

§  158.  Seals   of  courts,    to   what  documents   affixed. 

§  147.  What  courts  shall  have  seals.  Each  of  the  fol- 
lowing courts  shall  have  a  seal: 

1.  The  supreme  court; 

2.  The  superior  courts; 

3.  The  police  court  of  every  city  and  county.  En.  March 
11,  1872.     Am'd.  1880,  39. 

Seal  of  Court — Judicial  notice  taken  of:  Post,  sec.  1875, 
Bubd.  4;  court  commissioner  may  provide  official  seal,  sec. 
259,  subd.  5. 

Seals  how  made:   Ante,  sec.  14. 

Police  courts  are  not  courts  of  record;  See  ante,  sees. 
83,  34,  and  yet  have  a  seal. 

§  148.     Seal   of   supreme   court.     The  seal  used  by  the 

supreme  court,  abolished  by  the  constitution,  shall  be  the 
seal  of  the  supreme  court  herein  provided  for;  but  the  said 
court  may  direct  the  clerk  of  the  supreme  court  to  provide 
two  duplicates  of  said  seal,  each  of  which  shall  be  consid- 
ered the  same  as  and  have  the  same  force  and  effect  as  the 
original.     En.  March  11,  1872.    Am'd.  1880,  39. 

§  149.  Seals  of  superior  courts.  The  seals  of  the  su- 
perior courts  shall  be  circular,  not  less  than  one  and  three- 
fourths  Inches  in  diameter,  and  having  in  the  center  any 
word,  words,  or  design  adopted  by  the  Judges  thereof,  and 
the  following  inscription  surrounding  the  same:   "Superior 

Court,  ,  California,"  Inserting  the  name  of  the  county, 

or  city  and  county;  provided,  that  the  seal  of  any  such 
court,  which  has  been  adopted  previous  to  the  passage  of 
this  act,  shall  be  the  seal  of  such  court,  until  another  be 
adopted.    En.  March  11,  1872.    Am'd.  1880,  39. 


T8  QffiNERAL   PROVISIONS.  S§  lW-153 

See  act  of  March  31,  1880,  validating  writs,  process  and 
certiflcates  issued  from  superior  courts  before  seal  pro- 
vided: See  Stats.  1880,  p.  19. 

§  160.     Seals    of    police    courts    of    cities    and    counties. 

The  police  court  of  every  city  and  county  may  use  any  seal 
having  upon  it  the  inscription,  "Police  Court,  ,"  (in- 
serting the  name  of  the  city  and  county).  En.  March  11, 
1872.     Am'd.  1880,  39. 

Cal.  Rep.  CIt.    135,  352;    135,  358. 

§  151.     Seals,   how  provided;    private  seals,  when   used. 

Courts  which  have  not  the  necessary  seal  provided,  or  the 
Judge  or  Judges  thereof,  shall  request  the  supervisors  of 
their  respective  counties  or  cities  and  counties,  to  provide 
the  same,  and  in  case  of  their  failure  to  do  so,  may  order 
the  sheriff  to  provide  the  same,  and  the  expense  thereof 
shall  be  a  charge  against  the  county  or  city  and  county 
treasury,  and  paid  out  of  the  general  fund  thereof;  and 
until  such  seal  be  provided,  the  clerk  of  each  court  may 
use  his  private  seal,  whenever  a  seal  is  required.  En. 
March  11,  1872.     Am'd.  1880.  39. 

§  152.  Clertc  of  court  to  l<eep  seal.  TTie  clerks  of  the 
court  shall  keep  the  seal  thereof.  En.  March  11,  1872. 
Am'd.  1873-4,  284;    1880,  40. 

§  153.     Seals  of  courts,  to  what  documents  affixed.     Tha 

seal  of  a  court  need  not  be  affixed  to  any  proceeding  there- 
in or  document,  except: 

1.  To  a  writ; 

2.  To  the  certificate  of  probate  of  a  will,  or  of  the  ap- 
pointment of  an  executor,  administrator,  or  guardian; 

3.  To  the  authentication  of  a  copy  of  a  record,  or  other 
proceeding  of  a  court,  or  of  an  officer  thereof,  or  of  a  copy 
of  a  document  on  file  in  the  office  of  the  clerk.  En.  Stats. 
1880,  40. 


§5  156-158  JUDICIAL   OFFICERS   IN    GENERAU 


TITLE    II. 

JUDICIAL    OFFICERS. 

Chapter  I.    Judicial  Officers  in  General,  §§  156-161. 

II.    Powers  and  Duties    of    Judges    at    Chambers, 
§§  1G5-166. 

III.  Disqualifications  of  Judges,  §§  170-172. 

IV.  Incidental  Powers  and  Duties  of  Judicial  Offi- 

cers, §§  176-179. 
v.    Miscellaneous     Provisions     Respecting    Courts 
and  Judicial  Officers,  §§  182-187. 


CHAPTER  I. 
JUDICIAL  OFFICERS  IN  GENERAL. 

8  156.  Qualifications   of  justices  of  supreme  court. 

§  157.  Qualiflcations  of   superior  judges. 

§  158.  Residence  of  superior  judges. 

6  159  Residence   and  qualification  of  justices  of  the  peace. 

I  160.  Judges   holding   superior   courts   at    request   of   governor. 

I  161.  Justices  and  judges  ineligible  to   other  than  judicial  office. 

§  156.  Qualifications  of  justices  of  supreme  court.  No 
person  shall  be  eligible  to  the  office  of  chief  or  associate 
Justice  of  the  supreme  court,  unless  he  shall  have  been  a 
citizen  of  the  United  States  and  a  resident  of  this  state  for 
two  years  next  preceding  his  election  or  appointment,  nor 
unless  he  shall  have  been  admitted  to  practice  before  the 
supreme  court  of  the  state.  En.  March  11,  1872.  Am'd. 
1880,  40. 

Judge  must  be  an  attorney:  Const.  Cal.,  art.  6,  sec.  23. 

§  157.  Qualifications  of  superior  judges.  No  person 
shall  be  eligible  to  the  office  of  judge  of  a  superior  court 
unless  he  shall  have  been  a  citizen  of  the  United  States 
and  a  resident  of  this  state,  for  two  years  next  preceding 
his  election  or  appointment,  nor  unless  he  shall  have  been 
admitted  to  practice  before  the  supreme  court  of  the  state. 
En.  March  11,  1872.     Am'd.  1880,  40. 

§  158.  Residence  of  superior  judges.  Each  judge  of  a 
superior  court  shall  reside  at  the  county  seat  of  the  county 


75  JUDICIAL    OFFICERS    IN    GENEaRAL   .  153-161 

in  which  such  court  is  held,  or  within  three  miles  thereof, 
and  within  the  county,  except  that  in  the  counties  of  Yuba 
and  Sutter  the  judge  may  reside  in  either  of  said  counties; 
provided,  that  when  there  is  more  than  one  judge  of  the 
superior  court  in  a  county,  it  shall  not  be  necessary  for 
more  than  one  judge  to  reside  at  the  county  seat,  as  pro- 
vided herein.  En.  March  11,  1872.  Am'd.  1880,  40;  1891, 
277. 

Act  of  March  2,  1897,  Stats.  1897,  p.  48,  provided  for 
separate  judges  for  Sutter  and  Yuba  counties. 

§  159.  Residence  and  qualification  of  justices  of  the 
peace.  Every  justice  of  the  peace  shall  reside  in  the  city 
and  county,  or  township,  in  which  his  court  is  held,  and 
no  person  shall  be  eligible  to  the  office  of  justice  of  the 
peace  unless  he  shall  have  been  a  citizen  of  the  United 
States,  and  a  resident  of  the  city  and  county,  or  county, 
in  which  he  is  to  serve  for  one  year  next  preceding  his 
election  or  appointment.  En.  March  11,  1872.  Am'd.  1880, 
41. 


§  160.  Judges  holding  superior  courts  at  request  of  gov- 
ernor. If  by  reason  of  sickness,  absence,  disability,  or 
other  causes,  a  regular  session  of  the  superior  court  can- 
not be  held  in  any  county  by  the  judge  or  judges  thereof, 
or  by  a  superior  judge  requested  by  him  or  them  to  hold 
such  court,  a  certificate  of  that  fact  shall  be  transmitted  by 
the  clerk  thereof  to  the  governor,  who  may  thereupon  re- 
quest some  other  superior  judge  to  hold  such  court;  and  a 
judge  so  holding  a  court  at  the  request  of  the  governor,  or 
at  the  request  of  the  judge  or  judges  of  said  superior 
court,  shall  be  allowed  his  actual  and  necessary  expenses 
in  going  to,  returning  from,  and  attending  upon  the  busi- 
ness of  such  court,  which  shall  be  a  charge  against  the 
treasury  of  the  county  where  such  court  is  held,  and  paid 
out  of  the  general  fund  thereof.  En.  March  11,  1872. 
Am'd.  1875-6,  85;    1880,  41;     1887,  147. 

Cal.  Rep.  Cit.     87,  397. 

Holding  court  for  another  judge:   Ante,  sec.  71. 

§  161.  Justices  and  judges  ineligible  to  other  than  Ju- 
dicial office.  The  justices  of  the  supreme  court  and  judges 
of  the  superior  courts  shall  be  ineligible  to  any  other  office 
or  public  employment  than  a  judicial  office  or  employment 


§§  162-167  POWERS   OF  JUDGES   AT   CHAMBERS.  T6 

during  the  term  for  which  they  shall  have  been  elected. 
En.  March  11,  1872.     Am'd.  1873-4,  284;    1880,  41. 

Ineligible  to  public  employment:  Const.  Cal.,  art.  6,  sec. 
18. 

S     162.     En.  March  11,  1872.     Rep.  1873-4,  285;   ISSO,  21. 

Cal.  Rep.  Cit.  110,  425, 

CHAPTER  II. 

POWERS    OF    JUDGES    AT    CHAMBERS. 

8  1S5.     Powers  of  justices  of  supreme   court   at   chambers. 
§  166.     Powers   of   superior   judges   at   chambers. 

§  165.  .Powers  of  justices  of  supreme  court  at  chambers. 
The  justices  of  the  supreme  court,  or  any  of  them,  may,  at 
chambers,  grant  all  orders  and  writs  which  are  usually 
granted  in  the  first  instance  upon  an  ex  parte  application, 
except  writs  of  mandamus,  certiorari,  and  prohibition; 
and  may,  in  their  discretion,  hear  applications  to  dis- 
chai'ge  such  orders  and  writs.  En.  March  11,  1872.  Am'd, 
1880,  41, 

Powers  of  judges  out  of  court:  Post,  sec.  176. 

§  166.  Powers  of  superior  judges  at  chambers.  The 
judge  or  judges  of  a  superior  court,  or  any  of  them,  may, 
at  chambers,  grant  all  orders  and  writs  which  are  usually 
granted  in  the  first  instance  upon  an  ex  parte  application, 
and  may,  at  chambers,  hear  and  dispose  of  such  orders 
and  writs;  and  may  also,  at  chambers,  appoint  appraisers, 
receive  inventories  and  accounts  to  be  filed,  suspend  the 
powers  of  executors,  administrators,  or  guardians  in  the 
cases  allowed  by  law,  grant  special  letters  of  administra- 
tion or  guardianship,  approve  claims  and  bonds,  and  di- 
rect the  issuance  from  the  court  of  all  writs  and  process 
necessary  in  the  exercise  of  their  powers  in  matters  of 
probate.     En.  March  11,  1872.     Am'd.  1880,  41. 

Cal.  Rep.   Cit.     60,  227;     63,  444;     68,  641;     99,  513;     100, 
601;    127,  64. 

Power  of  judges  out  of  court:    Post,  sec.  176. 

Chamber  hours  for  judges:  Pol.  Code,  sec.  4116. 

Power  of  judge  of  probate  at  chambers:   Post,  sec.  1305. 

§  167,     En.  March  11,  1872.     Rep.  1880,  21. 
Cal.  Rep.  Cit.     54,  179. 


77  DISQUALIFICATIONS  OF   JUDGES.  S  "0 

CHAPTER  III. 

DISQUALIFICATIONS    OP    JUDGES. 

§  170.    Disqualification    to    sit    or   act. 

8  171.    Certain   judges   or  county  clerk   not  to  practice   law. 

§  172.     No  judicial   officer  to  have   partner   practicing   law. 

§  170.     Disqualification   of  judicial   officer  to   sit  or  act. 

No  justice,  judge,  or  justice  of  the  peace  shall  sit  or  act  as 
such  in  any  action  or  proceeding: 

1.  To  which  he  is  a  party  or  in  which  he  is  interested; 

2.  When  he  is  related  to  either  party,  or  to  an  officer  of 
a  corporation  which  is  a  party,  or  to  an  attorney,  counsel, 
or  agent  of  either  party,  by  consanguinity  or  affinity,  with- 
in the  third  degree,  computed  according  to  the  rules  of 
law;  provided,  however,  that  if  the  parties  to  the  action, 
or  the  executor,  or  administrator  of  the  estate,  or  the 
guardian  of  the  minor  or  incompetent  person,  or  the  re- 
ceiver, or  the  commissioner,  or  the  referee,  or  the  attorney 
for  a  party  in  all  special  proceedings  of  a  civil  or  crim- 
inal nature,  shall  sign  and  file  in  the  action  or  matter,  a 
stipulation  in  writing  waiving  the  disqualification  herein, 
the  judge  or  court  may  proceed  with  the  trial  or  hearing 
with  the  same  legal  effect  as  if  no  such  disqualification  ex- 
isted. 

3.  When,  In  the  action  or  proceeding,  or  in  any  previous 
action  or  proceeding  involving  any  of  the  same  issues,  he 
has  been  attorney  or  counsel  for  either  party;  or  when  he 
has  given  advice  to  either  party  upon  any  matter  involved 
in  the  action  or  proceeding; 

4.  When  it  appears  from  the  affidavit  or  affidavits  on 
file  that  either  party  cannot  have  a  fair  and  impartial  trial 
before  any  judge  of  a  court  of  record  about  to  try  the  case 
by  reason  of  the  prejudice  or  bias  of  such  judge,  said  judge 
shall  forthwith  secure  the  services  of  some  other  judge,  of 
the  same  or  another  county,  to  preside  at  the  trial  of  said 
action  or  proceeding;  provided,  that  in  an  action  in  the  su- 
perior court  of  a  county,  or  of  a  city  and  county,  having 
more  than  one  department,  said  action  shall  be  transferred 
to  another  department  thereof,  and  tried  therein  in  the 
same  manner  as  though  originally  assigned  to  such  depart- 
ment. The  affidavit  or  affidavits  alleging  the  disqualifica- 
tion of  a  judge,  must  be  filed  and  served  upon  the  ad- 
verse party  or  the  attorney  for  such  party  at  least  one  day 
before  the  day  set  for  trial  of  such  action  or  proceeding; 
provided,  counter-affidavits  may  be  filed  at  least  one  day 


§§  171-173  DISQUALIFICATIONS   OF  JUDGES.  78 

thereafter,  or  such  further  time  as  the  court  may  extend 
the  time  for  filing  such  counter-affidavits,  not  exceeding 
five  days,  and  for  thi?  purpose  the  court  may  continue  the 
trial;  and  in  no  one  cause  or  proceeding  can  more  than 
one  such  change  of  judges  be  had.  But  the  provisions  of 
this  section  shall  not  apply  to  the  arrangement  of  the  cal- 
endar, or  to  the  regulation  of  the  order  of  business,  nor 
the  power  of  transferring  the  action  or  proceeding  to  some 
other  court,  or  the  hearing  upon  such  affidavits  and  coun- 
ter-affidavits. En.  March  11,  1872.  Am'd.  1880,  42;  1893, 
234;    1897,  287;    1905,  467. 

Cal.  Rep.  Cit.  55,  72;  56,  328;  58,  322;  59,  130;  66, 
309;  66,  310;  83,  617;  91,  353;  94,  27;  94,  28;  97, 
173;  97,  175;  98,  362;  100,  320;  103,  398;  105,  466; 
105,  557;  115,  696;  121,  106;  121,  109;  123,  413;  123, 
455;  126,  308;  129,  106;  132,  305;  136,  335;  141,  41. 
Subd.  1—118,  251;  121,  104;  121,  373;  126,  308. 
Subd.  2—91,  348;  120,  332.  Subd.  4—123,  412;  129, 
104;  130,  307;  131,  240;  131,  251;  132,  303;  132, 
304;    136,  335;    136,  685;    139,  327;    143,  207. 

Change  of  venue:   Post,  sees.  397  et  seq. 

Subd.  2.  Consanguinity  and  affinity:  See  Civ.  Code,  sees. 
1390  et  seq. 

Subd.  3.  Judge  cannot  act  as  attorney:  'Post,  sees.  171, 
172. 

§  171.     Certain   judges   or   county   clerk    not   to    practice 

law.  No  justice,  or  judge  of  a  court  of  record,  or  county 
clerk,  shall  practice  law  in  any  court  of  this  state,  nor  act 
as  attorney,  agent,  or  solicitor  in  the  prosecution  of  any 
claim  or  application  for  lands,  pensions,  patent  rights  or 
other  proceedings,  before  any  department  of  the  state  or 
general  government,  or  courts  of  the  United  States  during 
his  continuance  in  office;  nor  shall  any  justice  of  the 
peace  practice  law  before  any  justice's  court  in  the  county 
in  which  he  resi-des.  En.  March  11,  1872.  Am'd.  1880,  42; 
1881,  78. 

§  172.     No  judicial  officer  to  have  partner  practicing  law. 

No  justice,  judge,  or  other  elective  judicial  officer,  or  court 
commissioner,  shall  have  a  partner  acting  as  attorney  or 
counsel  in  any  court  of  this  state.  En.  March  11,  1872. 
Am'd.  1880,  42. 

§  173.     En.  March  11,  1872.     Rep.  1880,  21. 


IMCXDENTAL   POWERS   AND   DUTIES.  S5  l^«-"8 


CHAPTER  IV. 

INCIDENTAL    POWERS    AND     DUTIES    OF    JUDICIAL    OFFICERS. 

§  176.  Powers   of  judges   out   of  court. 

^  177.  Powers   of  judicial  officers  as  to   conduct   of   proceedingra. 

^  17S.  To  punish  for  contempt. 

I  179.  To   take   acknowledgments   and   affidavits. 

§  176.  Powers  of  judges  out  of  court.  A  justice  or 
judge  may  exercise  out  of  court  all  the  powers  expressly 
conferred  upon  a  justice  or  judge,  as  contradistinguished 
from  the  court.     En.  March  11,  1872.     Am'd.  1880,  42. 

Cal.  Rep.  Cit.     68,  641. 

Powers  of  judge  at  chambers:   Ante,  sees.  165,  166. 
Power  to  administer  oaths:  Post,  sec.  179. 

§  177.  Powers  of  judicial  officers  as  to  conduct  of  pro- 
ceedings.    Every  judicial  officer  shall  have  power: 

1.  To  preserve  and  enforce  order  in  his  immediate 
presence,  and  in  proceedings  before  him,  when  he  is  en- 
gaged in  the  performance  of  official  duty; 

2.  To  compel  obedience  to  his  lawful  orders  as  provided 
in  this  code; 

3.  To  compel  the  attendance  of  persons  to  testify  in  a 
proceeding  before  him,  in  the  cases  and  manner  provided 
in  this  code; 

4.  To  administer  oaths  to  persons  in  a  proceeding  pend- 
ing before  him,  and  in  all  other  cases  where  it  may  be 
necessary  in  the  exercise  of  his  powers  and  duties.  En. 
March  11,  1872.     Am'd.  1880,  42. 

Cal.  Rep.  Cit.     65,  615;    140,  217;    140,  221.     Subd.  1-140, 
216.     Subd.  4—140,  13;     140,  216. 

Incidental   powers  of  courts:     Ante,   sec.   128. 

§  178.  To  punish  for  contempt.  For  the  effectual  exer- 
cise of  the  powers  conferred  by  the  last  section,  a  judicial 
officer  may  punish  for  contempt  in  the  cases  provided  in 
this  code.    En.  March  11,  1872.     Am'd.  1880,  42. 

Cal.  Rep.  Cit.     140,  13;    140,  216;    140,  217;    140,  221, 

Contempt,  generally:  Post,  sec.  1209;  in  justices'  courts, 
I)Ost,  sec.  906. 


§§  179,  182  MISCELLANEOUS    PROVISIONS.  80 

§  179.     To  take  acknowledgments  and  affidavits.    Each 

of  the  justices  of  the  supreme  court,  and  judges  of  the 
superior  courts,  shall  have  power  in  any  part  of  the  state, 
and  every  justice  of  the  peace  within  this  city  and  county, 
or  county,  and  a  judge  of  a  police  or  other  inferior  court 
within  his  city  and  county,  city,  or  town,  to  take  and 
certify: 

1.  The  proof  and  acknowledgment  of  a  conveyance  of 
real  property,  or  of  any  other  written  instrument; 

2.  The  acknowledgment  of  satisfaction  of  a  judgment  of 
any  court; 

3.  An  affidavit  of  deposition  to  be  used  in  this  state. 
En.  March  11,  1872.     Am'd.  1880,  42. 

Cal.  Rep.  Cit.     56,  465;    65,  615;     88,  410;    128,  420;    135, 

175,    140,  13;    140,  221.     Subd.  1—64,  300. 

Subd.  1.  Real  property,  acknowledgment  of  conveyance 
of:   See  Civ.  Code,  sees.  1180  et  seq. 

Subd.   2.     Satisfaction  of  judgment.     Post,  sec.   675. 

Subd.  3.  Affidavit:  Post,  sees.  2009  et  seq.  Deposition: 
Post,  sees.  2019  et  seq, 

CHAPTER  V. 

MISCELLANEOUS     PROVISIONS    RESPECTING    COURTS    AND    JU- 
DICIAL    OFFICERS. 

182.  Subsequent  applications  for  orders  refused,    when   prohibited. 

183.  Violations    of   preceding   section. 

1S4.  Proceedings   not   affected   by   vacancy   in   office. 

185.  Proceedings   to   be   in   English   language. 

186.  Abbreviations  and   figures. 

187.  Means    to    carry   jurisdiction    into   effect. 

§  182.  Subsequent  applications  for  orders  refused, when 
prohibited.  If  an  application  for  an  order  made  to  a  judge 
of  a  court  in  Avhich  the  action  or  proceeding  is  pending  is 
refused  in  whole  or  in  part,  or  is  granted  conditionally,  no 
subsequent  application  for  the  same  order  shall  be  made 
to  any  court  commissioner,  or  any  other  judge,  except  of  a 
higher  court;  but  nothing  in  this  section  applies  to  mo- 
tions refused  for  informality  in  the  papers  or  proceedings 
necessary  to  obtain  the  order,  or  to  motions  refused  with 
liberty  to  renew  the  same.  En.  March  11,  1872.  Am'd. 
1880,  43. 

Cal.  Rep.  Cit.     61,  194;     69,  635;    89,  338;    115,  697;     131, 
619. 

Orders  and  motions  generally:   Post,  sees.  1003  et  seq. 
Orders,  appealable:   Post,  sec.  939,  subd.  3. 


81  MISCEI.LANEOUS    PROVISIONS.  §§  1S3-1S8 

§  183.  Violations  of  preceding  section.  A  violation  of 
the  last  section  may  be  punished  as  a  contempt;  and  an 
order  made  contrary  thereto  may  be  revoked  by  the  judge 
or  commissioner  who  made  it,  or  vacated  by  a  judge  of 
the  court  in  which  the  action  or  proceeding  is  pending. 
En.  March  11,  1872.     Am'd.  1880,  43. 

Cal.  Rep.  Cit.    61,  194. 

Penalty  for  violation:   Post,  sees.  906,  1209. 

Ex  parte  order,  vacating  or  modifying:  Post,  sec.  937. 

§  184.     Proceedings    not   affected    by   vacancy    In    office. 

No  proceeding  in  any  court  of  justice,  in  an  action  or 
special  proceeding  pending  therein,  shall  be  affected  by 
a  vacancy  in  the  office  of  all  or  any  of  the  judges  thereof. 
En.  March  11,  1872.     Am'd.  1880,  43. 

185.  Proceedings  tc  be  in  English  language.  Every 
written  proceeding  in  a  court  of  justice  in  this  state  shall 
be  in  the  English  language,  and  judicial  proceedings  shall 
be  conducted,  preserved,  and  published  in  no  other.  En. 
March  11,   1872.     Am'd.   1880,  43. 

§  186.  Abbreviations  and  figures.  Such  abbreviations 
as  are  in  common  use  may  be  used,  and  numbers  may  be 
expressed  by  figures  or  numerals  in  the  customary  man- 
ner.    En.  March  11,   1872.     Am'd.   1880,  43. 

Cal.    Rep.    Cit.     135,    29. 

§  187.     Means   to   carry   Jurisdiction    into    effect.     When 

jurisdiction  is,  by  the  constitution  or  this  code,  or  by  any 
other  statute,  conferred  on  a  court  or  judicial  officer,  all 
the  means  necessary  to  carry  it  into  effect  are  also  given; 
and  in  the  exercise  of  this  jurisdiction,  if  the  course  of 
proceeding  be  not  specifically  pointed  out  by  this  code  or 
the  statute,  any  suitable  process  or  mode  of  proceeding 
may  be  adopted  which  may  appear  most  conformable  to 
the  spirit  of  this  code.  En.  March  11,  1872.  Am'd.  1880, 
43. 

Cal.  Rep.  Cit.  50,  542;  50,  545;  63,  507;  63,  508;  65,  192; 
71,  601;  72,  320;  72,  597;  75,  166;  76,  645;  81,  615; 
82,  467;  82,  468;  98,  495;  100,  120;  100,  109;  109,  255; 
113,  64;  117,  202;  118,  420;  121,  41;  124,  474;  137,  203; 
138,   495;    141,   553. 

§  188.     En.    1873-4,    285.     Rep.    1880,    21. 
Code   Civil   Proc.— 6. 


§§  190,  191  JtmORS. 


PERSONS   SPECIALLY    INVESTED   WITH   POWERS   OF 
A   JUDICIAL   NATURE, 

Chapter  I.    Jurors,  §§  190-254. 

U.     Court  Commissioners,   §§   258,  259. 

CHAPTER   L 

JURORS. 

Article  I.  Jurors   In   General,    §§   190-195. 

II.  Qualifications   and   Exemptions   of  Jurors,    §§    198-202. 

III.  Of   Selecting  and   Retm-ning  Jurors  for  Courts  of   Record,    §§ 

204-211. 

TV.  Of  Drawing  Jurors   for   Courts  of  Record,    §§    214-220. 

V.  Of  Summoning  Jurors   for   Courts   of   Record,    §§    225-228. 

Vl.  Of   Summoning   Jurors    for   Courts   not   of   Record,    §S    230-232. 

VU.  Of   Summoning   Jurors   of   Inquest,    §    235. 

VIII.  Obedience   to   Summons,    how  Enforced,    §   238. 

IX.  Of  Impaneling  Grand  Juries,    §§   241-243. 

X.  Of  Impaneling  Trial   Juries   in   Courts   of  Record,    §§   246,    247. 

XI.  Of  Impaneling  Trial   Juries  in   Courts  not  of  Record,    §§   250^ 

251. 

XII.  Of   Imi)anellng  Juries  of   Inquest,    §    254. 

ARTICLE    I. 

JURORS    IN    GENERAU 

8  190.  Jury   defined. 

§  191.  Different  kinds  of  juries. 

8  192.  Grand  jury  defined. 

I  193.  Trial   jury   defined. 

I  194.  Number  of  a  trial  jury. 

§  195.  Jury  of  inquest   defined. 

§  190.  Jury  defined.  A  jury  is  a  body  of  men  tempo- 
rarily selected  from  the  citizens  of  a  particular  district, 
and  invested  with  power  to  present  or  indict  a  person  for 
a  public  offense,  or  to  try  a  question  of  fact.  En.  March 
11,    1872.     Am'd.    1880,    44. 

Jurors,  qualifications  and  exemptions:  Post,  sees.  198- 
202. 

Selecting  an-d  summoning:  Post,  sees.  204,  238. 

Impaneling:   Post,  sees.  241-254. 

§  191.  Different  kinds  of  juries.  Juries  are  of  three 
kinds: 

1.  Grand    juries; 

2.  Trial    juries; 

3.  Juries  of  inquest.  En.  March  11,  1872.  Am'd.  1880, 
44. 


S3  JURORS.  ^  8§  192-198 

§  192.  Grand  jury  defined.  A  grand  jury  is  a  body  of 
men,  nineteen  in  number,  returned  in  pursuance  of  law, 
from  the  citizens  of  a  county,  or  city  and  county,  before  a 
court  of  competent  jurisdiction,  and  sworn  to  inquire  of 
public  offense  committed  or  triable  within  the  county,  or 
citv  and  county.  En.  March  11,  1872.  Am'd.  1875-6;  86; 
18S0.  44. 

Cal.  Rep.  Cit.     54,  65;  54,  66;  69,  108;  92,  261;  92,  263;  119, 

Grand   jury,    impaneling:   Post,    sees.    241-243. 
How  often  drawn:   Const.  Cal.,  art.   1,  sec.  8. 

§  193.  Trial  jury  defined.  A  trial  jury  is  a  body  of  men 
returned  from  the  citizens  of  a  particular  district  before 
a  court  or  ofQcer  of  competent  jurisdiction,  and  sworn  to 
try  and  determine,  by  verdict,  a  question  of  fact.  En. 
March  11,  1872.     Am'd.  1880,  44. 

Trial    by   jury:  Post,    sees.    600-619. 

Verdict,  three-quarters  of  jury  can  find:  Const.  Cal., 
art.  1,  sec.  7.    See  also,  post,  sec.  618. 

§  194.  Number  of  a  trial  jury.  A  trial  jury  shall  con- 
Bist  of  twelve  men;  provided,  that  in  civil  actions  and 
cases  of  misdemeanor,  it  may  consist  of  twelve,  or  of  any 
number  less  than  twelve,  upon  which  the  parties  may 
agree  in  open  court.  En.  March  11,  1872.  Am'd.  1880, 
44. 

Less  than  twel/^e:  Const.  Cal.,  art.  1,  sec.  7. 

§  195.  Jury  of  inquest  defined.  A  jury  of  inquest  is  a 
body  of  men  summoned  from  the  citizens  of  a  particular 
district  before  the  sheriff,  coroner,  or  other  ministerial 
officer,  to  inquire  of  particular  facts.  En.  March  11,  1872. 
Am'd.   1880,   44. 

Cal.   Rep.   Cit,     42,  382;    42,  385. 
ARTICLE    II. 

QUALIFICATIONS   AND    EXEMPTIONS   OF  JURORS. 

8  198.  Who  competent  to  act  as  Juror. 

I  199.  Who  not  competent  to  act  as  Juror. 

I  200.  Who   exempt   from   jury   duty. 

§  201.  Who  may  be  exctised. 

§  202.  Affidavit  of  claim   to   exemption. 


§  198.     Who    competent   to    act    as   Juror.     A   person    i 
competent  to  act  as  juror  if  he  be: 


IS 


§§  199,  200  JURORS.  M 

1.  A  citizen  of  the  United  States  of  the  age  of  twenty- 
one  years,  who  shall  have  been  a  resident  of  the  state  one 
lyear,  and  of  the  county,  or  city  and  county,  ninety  days 
before  being  selected  and  returned; 

2.  In  possession  of  his  natural  faculties,  and  of  ordinary 
intelligence,  and  not  decrepit; 

3.  Possessed  of  sufficient  knowledge  of  the  English  lan- 
guage; 

4.  Assessed  on  the  last  assessment  roll  of  the  county, 
or  city   and   county,   on   property   belonging  to  him.    En. 

•  March  11,  1872.     Am'd.  1875-6,  89;    1880,  45. 

CaL   Rep.   Cit.     51,   599;    58,   266;    61,  553;    106,   318;    147, 
549.     Subd.    4—123,   487. 

Residence,  generally:  See  Const.  Cal.,  art  2,  sec.  4; 
Pol.  Code,  sec.  52. 

§  199.    Who  not  competent  to  act  as  juror.    A  person  is 

not  competent  to  act  as  a  juror: 

1.  Who  does  not  possess  the  qualifications  prescribed  by 
the   preceding   section; 

2.  Who  has  been  conyicted  of  malfeasance  in  office  or 
any  felony  or  other  high  crime;    or 

3.  Who  has  been  discharged  as  a  juror  by  any  court  of 
record  in  this  state  within  a  year,  as  provided  in  section 
203  of  this  code,  or  who  has  been  drawn  as  a  grand  juror 
in  any  such  court  and  served  as  such  within  a  year,  and 
been    discharged. 

4.  A  person  who  is  serving  as  a  grand  juror  in  any  court 
of  record  in  this  state  is  not  competent  to  act  as  a  trial 
juror  in   any   such   court. 

And  a  peison  who  is  serving  as  a  trial  juror  in  any  court 
of  this  state  is  not  competent  to  act  as  a  grand  juror  in 
any  such  court.  En.  March  11,  1872.  Am'd.  1880,  45;  190§, 
70. 

Cal.   Rep.   Cit.     106,  318;    123,  487;    147,  549. 

§  200.  Who  exempt  from  jury  duty.  A  person  la  ex- 
empt from  liability  to  act  as  a  juror  if  he  be: 

1.  A  judicial,  civil,  or  military  officer  of  the  United 
States,   or   of   this    state; 

2.  A  person  holding  a  county,  city  and  county,  city,  town 
or  township   office; 

3.  An  attorney  at  law,  or  the  clerk,  secretary  or  stenog- 
rapher of  an  attorney  at  law; 


85  JURORS.  S  201 

4.  A  minister  of  the  gospel,  or  a  priest  of  any  denomina- 
tion following  his  profession; 

5.  A  teacher  in  a  university,  college,  academy,  or  school; 

6.  A  practicing  physician,  or  druggist  actually  engaged 
in  the  business  of  dispensing  medicines; 

7.  An  officer,  keeper  or  attendant  of  an  almshouse,  hos- 
pital,  asylum,   or   other   charitable   institution; 

8.  Engaged  in  the  performance  of  duty  as  officer  or  at- 
tendant of  the  state  prison  or  of  a  county  jail; 

9.  Employed  on  board  of  a  vessel  navigating  the  waters 
of  this   state; 

10.  An  express  agent,  mail  carrier,  or  a  superintendent, 
employee,  or  operator  of  a  telegraph  or  telephone  company 
doing  a  general  telegraph  or  telephone  business  in  this 
state,  or  keeper  of  a  public  ferry  or  tollgate; 

11.  An  active  member  of  the  National  Guard  of  Cali- 
fornia, or  an  active  member  of  a  paid  fire  department  of 
any  city  and  county,  city,  town,  or  village  in  this  state, 
or  an  exempt  member  of  a  duly  organized  fire  company; 

12.  A  superintendent,  engineer,  brakeman,  motorman,  or 
conductor  on   a  railroad;    or, 

13.  A  person  drawn  as  a  juror  in  any  court  of  record  In 
this  state,  upon  a  regular  panel,  who  has  ser\'ed  as  such. 
within  a  year  or  a  person  drawn  or  summoned  as  a  juror 
In  any  such  court  who  has  been  discharged  as  a  juror 
within  a  year  as  hereinafter  provided.  En.  March  11, 
1872.  Am'd.  1873-4,  285;  1875-6,  86;  1S80,  45;  1897,  185; 
1905,  71. 

Cal.   Rep.    Clt.     Subd.   2—123,   486. 

Exemption,  how   claimed:  Post,   sec.   202. 
Subd.  11.     Exempt  fireman:   Pol.   Code,  sees.  3337-3339. 
Members  of  National  Guard:  See  Pol.   Code,  sees.  1936, 
1962. 

§  291.  Who  may  be  excused.  A  juror  shall  not  be  ex- 
cused by  a  court  for  slight  or  trivial  cause,  or  for  hardship 
or  Inconvenience  to  his  business,  but  only  when  material 
injury  or  destruction  to  his  property,  or  of  property  in- 
trusted to  him,  is  threatened,  or  when  his  own  health,  or 
the  sickness  or  death  of  a  member  of  his  family,  requires 
his  absence.     En.  March  11,  1872.     Am'd.  1880,  45. 

CaJ.    Rep.    Cit.     138,    268. 


§§  202,  204  JURORS.  86 

§  202.  Affidavit  of  cisim  to  exemption.  If  a  person  ex- 
empt from  liability  to  act  as  a  juror,  as  provided  in  sec- 
tion two  hundred,  be  summoned  as  a  juror,  lie  may  make 
and  transmit  his  affidavit  to  the  clerk  of  the  court  for 
which  he  is  summoned,  stating  his  office,  occupation,  or 
employment;  and  such  affidavit  shall  be  delivered  by  the 
clerk  to  the  judge  of  the  court  where  the  name  of  such 
person  Is  called,  and  if  sufficient  In  substance,  shall  be  re- 
ceived as  an  excuse  for  nonattendance  in  person.  The 
affidavit  shall  then  be  filed  by  the  clerk.  En.  Stats.  1873-4, 
286.     Am'd.   18S0,  46. 


ARTICLE    III. 

OF     SELECTING     AND     RETURNING    JURORS     FOR     COURTS     OB' 

RECORD. 

204.  Jury   Hsts,    by  whom  and   when   to   be   made, 

205.  How  selection  shall  be   made. 

206.  Lists  to  contain  how  many  names. 

207.  Repealed. 

208.  Lists  to  be  placed  with  olerk. 

209.  Duty  of  clerk;  jury  boxes. 

210.  Regular  jurors   to   serve   one   year, 
g  211.    Jurors  to  be  drawn   from  boxes. 

§  204,     Jury  lists,  by  wliom  and  when  to  be  made.     In 

the  month  of  January  in  each  year  it  shall  be  the  duty  of 
the  superior  court  in  each  of  the  counties  of  this  state, 
to  make  an  order  designating  the  estimated  number  of 
grand  jurors,  and  also  the  number  of  trial  jurors,  that 
will,  In  the  opinion  of  said  court,  be  required  for  the 
transaction  of  the  business  of  the  court  and  the  trial  of 
causes  therein  during  the  ensuing  year;  and  immediately 
after  said  order  designating  the  estimated  number  of 
grand  Jurors  shall  be  made,  the  court  shall  select  and  list 
the  !grand  jurors  required  by  said  order  to  serve  as  grand 
jurors  in  said  superior  court  •during  the  ensuing  year,  or 
until  new  lists  of  jurors  shall  be  provided^  and  said  selec- 
tions and  listings  shall  be  made  of  persons  suitable  and 
competent  to  serve  as  jurors,  as  set  forth  and  required 
In  sections  two  hundred  and  five  and  two  hundred  and  six 
of  this  code,  which  list  of  persons  so  selected  shall  at 
once  be  placed  In  the  possession  of  the  county  clerk;  and 
l'mme»diately  after  said  order  designating  the  estimated 
number  of  trial  jurors  shall  be  made,  the  board  of  super- 
visors shall  select,  as  provided  in  sections  two  hundred 
and  five  and  two  hundred  and  six  of  this  code,  a  list  of 


87  JURORS.  5  J  203-208 

persons  to'  servs  as  trial  jurors  In  the  superior  court  of 
said  county  during  the  ensuing  year,  or  until  a  new  list 
of  jurors  shall  be  provided.  In  counties  and  cities  and 
counties  having  a  population  of  one  hundred  thousand 
Inhabitants  or  over,  such  selection  shall  be  made  by  a 
majority  of  the  judges  of  the  superior  courts.  En.  March 
11,  1872.  Am'd.  1878-4,  286;  1875-6,  1880,  46;  1881,  69;  ISaa, 
297. 

Cal.  Rep.  Clt  56,  87;  69,  544;  69,  549;  73,  239;  92,  242; 
104,  320;  106,  319;  116,  193;  116,  194;  116,  195;  138, 
269;    145,   295. 

§  205.  How  selection  shall  be  made.  The  selections 
and  listings  shall  be  made  of  persons  suitable  and  compe- 
tent to  serve  as  jurors,  who  are  assessed  on  the  last  pre- 
ceding assessment  roll  of  such  county  or  city  and  county, 
and  in  making  such  selections  they  shall  take  the  names 
of  such  only  as  are  not  exempt  from  serving,  who  are  in 
the  possession  of  their  natural  faculties,  and  not  infirm  or 
decrepit,  of  fair  character  and  approved  integrity,  and  of 
sound  judgment.  En.  March  11,  1872.  Am'd.  1880,  46; 
1881,  70;   1893,  298. 

Cal.  Rep.  Cit.     95,  426;   116,  194;   145,  295. 

§  206.  Lists  to  contain  how  many  names.  The  lists  of. 
jurors,  to  be  made  as  provided  in  the  preceding  section, 
shall  contain  the  number  of  persons  which  shall  liave 
been  designated  by  the  court  in  its  order.  The  names  for 
such  lists  shall  be  selected  from  the  different  wards  or 
townships  of  the  respective  counties,  in  proportion  to  the 
number  of  inhabitants  therein,  as  nearly  as  the  same  can 
be  estimated  by  the  persons  making  said  lists;  and  said 
lists  shall  be  kept  separate  and  distinct  one  from  the 
other.  En.  March  11,  1872.  Am'd.  1875-6,  87;  1880,  46; 
1881,  70. 

Cal.  Rep.  Cit.     56,  37;  121,  3;  131,  252;  138,  269;  145,  295; 
145,  297. 

§  207.     Repealed.    En.  March  11,  1872.    Rep.  1875-6,  87. 

§  208.  Lists  to  be  placed  v/ith  clerk.  A  certified  list  of 
the  persons  selected  to  serve  as  trial  jurors  shall  at  once 
be  placed  in  the  possession  of  and  filed  with  the  clerk  of  the 
superior  court.  En.  March  11,  1872.  Am'd.  1880,  46;  1881, 
70;  1893,  298. 

Cal.   Rep,    Cit.    56,   37;    108,   12. 


§§  209-214  JURORS.  S 

§  209.  Duty  of  clerk;  jury  boxes.  On  receiving  such 
lists,  the  county  clerk  shall  file  the  same  in  his  office, 
and  write  down  the  names  contained  thereon  on  separate 
pieces  of  paper,  of  the  same  size  and  appearance,  and  fold 
each  piece  so  as  to  conceal  the  name  thereon.  He  shall 
deposit  the  pieces  of  paper  having  on  them  the  names  of 
the  persons  selected  to  serve  as  grand  jurors  in  a  box,  to 
be  called  the  "grand  jury  box,"  and  those  having  on  them 
the  names  of  the  persons  selected  to  serve  as  trial  jurors, 
in  a  box  to  be  called  the  "trial  jury  box."  En.  March  11, 
1872.     Am'd.  1875-6;   1880,  47;   1881,  70. 

Cal.  Rep.  Cit.  56,  38;    116,  193. 

§  210.  Regular  jurors  to  serve  one  year.  The  persons 
whose  names  are  so  returned  shall  be  known  as  regular 
jurors,  and  shall  serve  for  one  year,  and  until  otVi^T.  persons 
are  selected  and  returned.  En.  March  11,  1872.  Am'd. 
1880,  47. 

Cal.  Rep.  Cit.  69,  549;    73,  239;    106,  819;    138,  269. 

§  211.  Jurors  to  be  drawn  from  boxes.  The  names  of 
persons  drawn  for  grand  jurors  shall  be  drawn  from  the 
"grand  jury  box,"  and  the  names  of  persons  for  trial 
jurors  shall  be  drawn  from  the  "trial  jury  box";  and  if, 
at  the  end  of  the  year,  there  shall  be  the  names  of  persons 
in  either  of  the  said  jury  boxes  who  may  not  have  been 
drawn  during  the  year  to  serve,  and  have  not  served  as 
jurors,  the  names  of  such  persons  may  be  placed  on  the 
list  of  jurors  drawn  for  the  succeeding  year.  En.  March 
1875-6,  87.    Am'd.  1880,  47;  1881,  70. 

Cal.  Rep.  Cit.     56,  38;    69,  544;    104,  320;    106,  319;    131, 
252. 

ARTICLE  rV. 

OF  DRAWING  JUnORS   FOR   COURTS   OF  RECORD. 

214.  Order  of  judge  or  judges  for  drawing  ot  jury. 

215.  Sheriff  to  be  notified. 

216.  No  section. 

217.  No    section. 

218.  No  section. 

219.  Drawing,    how  conducted. 

§  220.     Preservation   ot  ballots   drawn. 
§  2?1.    No  section. 

§  214.     Order   of  judge   or  judges  for   drawing   of  jury. 
Whenever  the  business  of  the  superior  court  shall  require 


89  JURORS.  §5  215-219 

the  attendance  of  a  trial  jury  for  the  trial  of  criminal  cases, 
or  where  a  trial  jury  shall  have  been  demanded  in  any 
cause  or  causes  at  issue  in  said  court,  and  no  jury  is  in 
attendance,  the  court  may  make  an  order  dir€)cting  a  trial 
jury  to  be  drawn,  and  summoned  to  attend  before  said 
court.  Such  order  shall  specify  the  number  of  jurors  to 
be  drawn,  and  the  time  at  which  the  jurors  are  required 
to  attend.  And  the  court  may  direct  that  such  causes, 
either  criminal  or  civil,  in  which  a  jury  may  be  required, 
or  in  which  a  jury  may  have  been  demanded,  be  continued 
and  fixed  for  trial  when  a  jury  shall  be  in  attendance. 
En.  March  11,  1872.     Am'd.  1S73-4,  287;  1875-6,  88;  1880,  47. 

Cal.  Rep.  Cit.  57,  124;    65,78;    97,176;    138,269;    139,64. 

Summoning  jury.    See  sec.  226,  post. 

§  215.  Sheriff  to  be  notified.  Immediately  upon  the 
order  mentioned  in  the  preceding  section  being  made,  the 
clerk  shall,  in  the  presence  of  the  court,  proceed  to  draw 
the  jurors  from  the  "trial  jury  box."  En.  March  11,  1872. 
Am'd.    1873-4,    287;    1880,    47;    1881,    71. 

Cal.  Rep.  Cit.     55,  463;    65,  78. 

§  216.    En.  March  11,  1872.    Rep.  1880,  21. 

§  217.  En.  March  11,  1872.  Am'd.  1873-4,  287.  Rep. 
1880,  21. 

§  218.     En.  March  11,  1872.     Rep.  1880,  21. 

§  219.  Drawing,  how  conducted.  The  clerk  must  con- 
duct said  drawing  as  follows: 

1.  He  must  shake  the  box  containing  the  names  of  the 
trial  jurors,  so  as  to  mix  the  slips  of  paper  upon  which  such 
names  are  written,  as  well  as  possible;  he  must  then  draw 
from  said  box  as  many  slips  of  paper  as  are  ordered  by 
the   court. 

2.  A  minute  of  the  drawing  shall  be  entered  in  the 
minutes  of  the  court,  which  roust  show  the  name  on  each 
slip  of  paper  so  drawn  from  said  jury  box. 

3.  If  the  name  of  any  person  is  drawn  from  said  box 
who  is  deceased  or  insane,  or  who  may  have  permanently 
removed  from  the  county,  or  who  is  exempt  from  jury 
service,  and  the  fact  shall  be  made  to  appear  to  the  satis- 
faction of  the  court,   the  name  of  such  person  shall   be 


§§  220-225  JURORS.  90 

omitted  from  the  list,  and  the  slip  of  paper  having  such 
name  on  it  shall  be  destroyed,  and  another  juror  drawn  in 
his  place,  and  the  fact  shall  be  entered  upon  the  minutes  of 
the  court.  The  same  proceeding  shall  be  had  as  often  as 
may  be  necessary,  until  the  whole  number  of  jurors  re- 
quired be  drawn.  After  the  drawing  shall  be  completed, 
the  clerk  shall  make  a  copy  of  the  list  of  names  of  the  per- 
sons so  drawn,  and  certify  the  same.  In  his  certificate  he 
shall  state  the  date  of  the  order  and  of  the  drawing,  and  the 
number  of  the  jurors  drawn,  and  the  time  when  and  the 
place  where  such  jurors  are  required  to  appear.  Such  cer- 
tificate and  list  shall  be  delivered  to  the  sheriff  for  service. 
En.  March  11,  1872.     Am'd.  1880,  47;   1881,  71. 

Cal.  Rep.  Cit.     57,124;    69,109;    92,242. 

§  220.  Preservation  of  ballots  drawn.  After  a  drawing 
of  persons  to  serve  as  jurors,  the  clerk  shall  preserve  the 
ballots  drawn,  and  at  the  close  of  the  session  or  sessions 
for  which  the  drawing  was  had,  he  shall  replace  in  the 
proper  box  from  which  they  were  taken  all  ballots  which 
have  on  them  the  names  of  persons,  who  did  not  serve  as 
jurors  for  the  session  or  sessions  aforesaid,  and  who  are 
not  exempt  or  incompetent.  En.  March  11,  1872.  Am'd. 
1875-6,  88;   18S0,  48. 

9  221.    En.  March  11,  1872.     Rep.  1880,  21. 


AUTICLE  V. 

OF   SUMMONING  JURORS   FOR   COURTS   OF   RECORD. 

S  225.  Sheriff  to   summon  jurors,   how. 

I  226  Of  drawing  and  summoning  jurors  to  attend  forthwith. 

8  227.  Of  summoning  jurors   to   complete  a  panel. 

§  228.  Compensation  of  elisor. 

§  225.  Sheriff  to  summon  jurors,  how.  The  sheriff,  as 
soon  as  he  receives  the  list  or  lists  of  jurors  drawn,  shall 
summon  the  persons  named  therein  to  attend  the  court  at 
the  opening  of  the  regular  session  thereof,  or  at  such  ses- 
sion or  time  as  the  court  may  order,  by  giving  personal 
notice  to  that  effect  to  each  of  them,  or  by  leaving  a  written 
notice  to  that  effect  at  his  place  of  residence,  with  some 
person  of  proper  age,  and  shall  return  the  list  to  the  court. 


91  JI.RORS.  §§  226-228 

at  the  opening  of-  the  regular  session  thereof,  or  at  such 
session,  or  time  as  the  jurors  may  be  ordered  to  attend, 
specifying  the  names  of  those  v.'ho  were  summoned,  and 
the  manner  in  which  each  person  was  notified.  En.  March. 
11,  1872.     Am'd.  1880,  48. 

§  226.  Of  drawing  and  summoning  jurors  to  attend 
forthwith.  Whenever  jurors  are  not  drawn  or  summoned 
to  attend  any  court  of  record  or  session  thereof,  or  a  suf- 
ficient number  of  jurors  fail  to  appear,  such  court  may 
order  a  sufficient  number  to  be  forthwith  drawn  and  sum- 
moned to  attend  the  court,  or  it  may,  by  an  order  entered 
in  its  minutes,  direct  the  sheriff,  or  an  elisor  chosen  by  the 
court,  forthwith  to  summon  so  many  good  and  lawful  men 
of  the  county,  or  city  and  county,  to  serve  as  jurors,  as  may 
be  required,  and  in  either  case  such  jurors  must  be  sum- 
moned in  the  manner  provided  in  the  preceding  section. 
En.  March  11,  1872.     Am'd.  1873-4,  288;    1880,  48. 

Cal.  Rep.  Cit.  47,  95;  47,  136;  54,  401;  59,  363;  65,  151; 
69,  Ul;  92,  243;  92,  246;  92,  258;  92,  272;  95,  427; 
106,318;  116,195;  116,508;  122,237;  134,438;  139, 
64;    142,  360. 

§  227.     Of  summoning  jurors  to  complete  a  panel.    When 

there  are  not  competent  jurors  enough  present  to  form  a 
panel  the  court  may  direct  the  sheriff,  or  an  elisor  chosen 
by  the  court,  to  summon  a  sufficient  number  of  persons 
having  the  qualifications  of  jurors  to  cemplete  the  panel, 
from  the  body  of  the  county,  or  city  and  county,  and  not 
from  the  bj'^standers ;  and  the  sheriff  or  elisor  shall  summon 
the  number  so  ordered  accordingly  and  return  the  names 
to  the  court  En.  March  11,  1872.  Am'd.  1873-4,  288;  1880, 
48. 

Cal.  Rep.  Cit.  59,  363;  106,  318;  113,  85;  116,  195;  138, 
269;    142,  360. 

Prac.  Act,  sec.  589.    En.  April  29,  1851. 

§  228.  Compensation  of  elisor.  An  elisor  who  shall,  by 
order  of  a  court  of  record,  summon  persons  to  sei^e  as 
jurors,  shall  be  entitled  to  a  reasonable  compensation  for 
his  services,  which  must  be  fixed  by  the  court  and  paid  out 
of  the  county  or  city  and  county  treasury,  and  out  of  the 
general  fund  thereof.    En.  Stats.  1875-6,  88.  Am'd.    1880,  49. 


§§  230-a35  JURORS. 


ARTICLE  VI. 

OF  SUMMONING  JURORS  FOR  COURTS  NOT  OF  RECORD. 

8  230.    Jurors   for  justices'    or   police   courts. 
§  231.    How  to  be  summoned. 
§  232.     Officer's  return. 

§  230.  Jurors  for  justices'  or  police  courts.  When  jur- 
ors are  required  in  any  of  the  justices'  courts,  or  in  any  po- 
lice or  other  inferior  court,  they  shall,  upon  the  order  of 
the  justice,  or  any  one  of  the  justices  where  there  is  more 
than  one,  or  if  [of]  the  judge  thereof,  be  summoned  by  the 
sheriff,  constable,  marshal,  or  policeman  of  the  jurisdiction. 
En.  March  11,  1872.     Am'd.  1880,  49. 

Cal.  Rep.  Cit.  145,  475. 

§  231.  How  to  be  summoned.  Such  jurors  must  be  sum- 
moned from  the  persons  competent  to  serve  as  jurors,  resi- 
dents of  the  city  and  county,  township,  city,  or  town  in 
which  such  court  has  jurisdiction,  by  notifying  them  orally 
that  they  are  summoned,  and  of  the  time  and  place  at 
which  their  attendance  is  required.  En.  March  11,  1872. 
Am'd.   1880,   49. 

§  232.  Officer's  return.  The  officer  summoning  such, 
jurors  shall,  at  the  time  fixed  in  the  order,  for  their  appear- 
ance, return  it  to  the  court  with  a  list  of  the  persons 
summoned  indorsed  thereon.  En.  March  11,  1872,  Am'd. 
1880,  49. 

ARTICLE  Vn. 

OF  SUMMONING  JURIES   OF   INQUEST. 
§  235.    How   to  be  summoned. 

§  235.  How  to  be  summoned.  Juries  of  inquest  shall  be 
summoned  by  the  officer  before  whom  the  proceedings  in 
which  they  are  to  sit  are  to  be  had,  or  by  any  sheriff,  con- 
stable, or  policeman,  from  the  persons  competent  to  serve 
as  jurors,  resident  of  the  county,  or  city  and  county,  by 
notifying  them  orally  that  they  are  so  summoned,  and  of 
the  time  and  place  at  which  their  attendance  is  required. 
En.   March   11,   1872.     Am'd.   1880,  49. 


S§  238,  241 


ARTICLE  VIII. 

OBEDIENCE    TO    SUMMONS,    HOW    ENFORCED. 
§  238.    Attachment  and  fine. 

§  238.  Attachment  and  fine.  Any  juror  summoned,  who 
willfully  and  without  reasonable  excuse  fails  to  attend,  may 
be  attached  and  compelled  to  attend;  and  the  court  may 
also  impose  a  fine  not  exceeding  fifty  dollars,  upon  which 
execution  may  issue.  If  the  juror  has  not  personally 
served,  the  fine  must  not  be  imposed  until  upon  an  order  to 
show  cause  an  opportunity  has  been  offered  the  juror  to  be 
heard.    En.  March  11,  1872.    Am'd.  1880,  49. 


ARTICLE  IX. 

OF    IMPANELING    GRAND    JURIES. 

§  241.     Grand   juries,    when   and   by   whom   impaneled. 

8  242.     How   constituted. 

5  243.    Manner  of  Impaneling  prescribed   In   Penal   Code. 

§  241.  Grand  juries,  when  and  by  whom  impaneled. 
Every  superior  court,  whenever  in  the  opinion  of  the  court 
the  public  interest  requires  it,  m.ust  make  and  file  with 
the  county  clerk,  an  order  directing  a  jury  to  be  drawn,  and 
designate  the  number,  which,  in  case  of  a  grand  jury,  shall 
not  be  less  than  twenty-five  nor  more  than  thirty.  In  all 
counties  there  shall  be  at  least  one  grand  jury  drawn  and 
impaneled  in  each  year.  Such  order  must  designate  the 
time  at  which  the  drawing  will  take  place.  The  names  of 
such  jurors  shall  be  drawn,  the  list  of  names  certified  and 
summoned,  as  provided  for  drawing  and  summoning  trial 
jurors;  and  the  names  of  any  persons  drawn,  who  may  not 
be  impaneled  upon  the  grand  jury,  may  be  again  placed  in 
the  grand  jury  box.  En.  March  11,  1872.  Am'd.  1880,  50; 
1881,   71;    1905,   139. 

Cal.  Rep.  Cit.  47,  136;    69,  109;    69,  546;    69,  549;    92,  242. 

Summoning  grand  jury:   Const.  Cal.,  art.  1,  sec.  8. 


|§  242-246  JURORS.  M 

§  242.  How  constituted.  WTien,  of  the  persons  sum- 
moned as  grand  jurors  and  not  excused,  nineteen  are  pres- 
ent, they  shall  constitute  the  grand  jury.  If  more  than 
nineteen  of  such  persons  are  present,  the  clerk  shall  write 
their  names  on  separate  ballots,  which  he  must  fold  so 
that  the  names  cannot  be  seen,  place  them  in  a  box,  and 
draw  out  nineteen  of  them,  and  the  persons  whose  names 
are  on  the  ballots  so  drawn  shall  constitute  the  grand  jury. 
If  less  than  nineteen  of  such  persons  are  present,  the 
panel  may  be  filled  as  provided  in  section  two  hundred  and 
twenty-six  of  this  code.  And  whenever,  of  the  persons 
summoned  to  complete  a  grand  jury,  more  shall  attend 
than  are  required,  the  requisite  number  shall  be  obtained 
by  writing  the  names  of  those  summoned  and  not  excused 
on  ballots,  depositing  them  in  a  box,  and  drawing  as  above 
provided.    En.  March  11,  1872.    Am'd.  1875-6,  88;  1880,  50. 

§  243.     Manner  of  impaneling  prescribed  in  Penal  Code. 

Thereafter  such  proceedings  shall  be  had  in  impaneling 
the  grand  jury  as  are  prescribed  in  part  two  of  the  Penal 
Code.    En.  March  11,   1872.     Am'd.   1880,   50. 

Cal.   Rep.   Cit.   54,   66;    69,   111;    92,   258;    106,   316;    106, 
318;    134,  437. 

Formation  of  grand  jury:  See  Pen.  Code,  sees.  894-901. 


ARTICLE  X. 

OF    IMPANELING    TRIAL,    JURIES    IN    CX)URTS    OP    RECORD. 

S  246.     Clerk  to  call   list  of  jurors  summoned. 

§  247.    Manner  ot  Impimeling  prescribed  in  part  two. 

§  246.     Clerk  to   call   list  of  jurors  summoned.    At  the 

opening  of  court  on  the  day  trial  jurors  have  been  sum- 
moned to  appear,  the  clerk  shall  call  the  names  of  those 
summoned,  and  the  court  may  then  hear  the  excuses  of 
jurors  summoned.  The  clerk  shall  then  write  the  names 
of  the  jurors  present  and  not  excused  pon  separate  slips 
or  ballots  of  paper,  and  fold  such  slips  so  that  the  names 
axe  concealed,  and  there,  in  the  presence  of  the  court,  de- 
posit the  slips  or  ballots  in  a  box,  which  must  be  kept 
sealed  or  locked  until  ordered  by  the  court  to  be  opened. 
En.  March  11,  1872.     Am'd.  1880,  50. 

Cal.  Rep.  Cit.    101,  544. 


95  JURORS.  S§  247-254 

§  247.     Manner    of    impaneling    prescribed    in    part    two. 

Whenever  thereafter  a  civil  action  is  called  by  the  court 
for  trial,  and  a  jury  is  required,  such  proceedings  shall  be 
had  in  impaneling  the  trial  jury  as  are  prescribed  in  part 
two  of  this  code.  If  the  action  be  a  criminal  one,  the  jury 
shall  be  impaneled  as  prescribed  in  the  Penal  Code.  En. 
March    11,   1872.     Am'd.   1880,    51. 

Formation  of  jury  in  civil  action:   See  post,  sees.  600-604. 

Criminal   case:   See   Pen.   Code,   sees.   1055-1089. 


ARTICLE  XI. 

OP   IMPAXBTLING   TRIAL   JURIES   IN   COURTS    NOT    OF   RECORD. 

8  2oO.    Proceedings    in    forming   Jury. 
§  251.     Manner   of   impaneling. 

§  250.  Proceedings  in  forming  jury.  At  the  time  ap- 
pointed for  a  jury  trial  in  justices',  police  or  other  inferior 
courts,  the  list  of  jurors  summoned  must  be  called,  and  the 
names  of  those  attending  and  not  excused  must  be  written 
upon  separate  slips  of  paper,  folded  so  as  to  conceal  the 
names,  and  placed  in  a  box,  from  which  the  trial  jury  must 
be  drawn.     En.  March  11,  1872.     Am'd.  1880,  51. 

Prac.  Act,  sec.  588.     En.  April  29,  1851. 

§  251.  Manner  of  impaneling.  Thereafter,  If  the  action 
is  a  criminal  one,  the  jury  must  be  impaneled  as  provided 
in  the  Penal  Code;  if  a  civil  one  as  provided  in  part  two  of 
this  code.     En.  March  11,  1872.     Am'd.  1880,  51. 

Similar  provision:  See  ante,  sec.  247. 


ARTICLE  Xn. 

OF  IMPANELING  JURIES  OF  INQUEST. 
I  254.    Manner   of   Impaneling. 

§  254.  Manner  of  impaneling.  The  manner  of  impanel- 
ing juries  of  inquest  is  prescribed  in  the  provisions  of  the 
different  codes  relating  to  such  inquests.  En.  March  11, 
1872.     Am'd.  1880.  51. 

Cal.  Rep.  Cit.    43,  86;    43,  173. 


§§  258,  259  COURT    COMMISSIONERS. 


CHAPTER  II. 

COURT     COMMISSIONERS. 

S  258.    Appointment   and    qualifications. 
§  259.     Powers  of  court   commissioners. 

§  258.  Appointment  and  qualifications.  The  superior 
court  of  every  city  and  county  in  the  state  may  appoint  six 
commissioners,  to  be  designated  each  as  "court  commis- 
sioner" of  such  city  and  county;  and  the  superior  court  of 
every  other  county  in  the  state  may  appoint  one  commis- 
sioner, to  be  designated  as  "court  commissioner"  of  such 
county.  Such  commissioners  shall  be  citizens  of  the 
United  States,  and  residents  of  the  city  and  county,  or 
county,  in  which  they  are  appointed,  and  hold  offices  dur- 
ing the  pleasure  of  the  courts  appointing  them.  En. 
March  11,  1872.    Am'd.  1880,  51. 

Court  commissioners:   See  Const.  Cal.,  art.  6,  sec.  14. 

§  259.  Powers  of  court  commissioners.  Every  court 
commissioner   shall   have   power: 

1.  To  hear  and  determine  ex  parte  motions  for  orders 
and  writs,  except  orders  or  writs  of  injunction  in  the  supe- 
rior court  of  the  county,  or  city  and  county,  for  which  he  is 
appointed;  provided,  that  he  shall  have  power  to  hear  and 
determine  such  motions  only  in  the  absence  or  inability  to 
act  of  the  judge  or  judges  of  the  superior  court  of  the 
county,  OT  city  and  county; 

2.  To  take  proof  and  report  his  conclusions  thereon  as 
to  any  matter  of  fact  other  than  an  issue  of  fact  raised  by 
the  pleadings,  upon  which  information  is  required  by  the 
court;  but  any  party  to  the  proceedings  may  except  to 
such  report  within  five  days  after  written  notice  that  the 
same  has  been  filed,  and  may  argue  his  exceptions  before 
the  court  on  giving  notice  of  motion  for  that  purpose; 

3.  To  take  and  approve  bonds  and  undertakings  when- 
ever the  same  may  be  required  in  actions  or  proceedings 
In  such  superior  courts,  and  to  examine  the  sureties 
thereon  when  an  exception  has  been  taken  to  their  suffi- 
ciency, and  to  administer  oaths  and  affirmations,  and  take 
affidavits  and  depositions  in  any  action  or  proceeding  in 
any  of  the  courts  of  this  state,  or  in  any  matter  or  pro- 


37  COURT    COMMISSIONERS.  §  :;59 

ceeding  whatever,  and  to  take  acknowledgments  and  proof 
of  deeds,  mortgages,  and  other  instruments  requiring  proof 
or  acknowledgment  for  any  purpose  under  the  laws  of 
this  state; 

4.  To  charge  and  collect  the  same  fees  for  the  perform- 
ance of  official  acts  as  are  now  or  may  hereafter  be  al- 
lowed by  law  to  notaries  public  in  this  state  for  like  ser- 
vices; provided,  that  this  subdivision  shall  not  apply  to 
any  services  of  such  commissioner,  the  compensation  for 
which  is  expressly  fixed  by  law; 

5.  To  provide  an  official  seal,  upon  which  must  be  en- 
graved the  words  "court  commissioner"  and  the  name  of 
the  county,  or  city  and  county,  in  which  said  commissioner 
resides; 

6.  To  authenticate  with  his  official  seal  his  official  acts. 
En.  March  11,  1872.     Am'd.  1877-8,  98;   1880,  51. 

Cal.  Rep.  Cit.     56,  465;    56,  627;    104,  682;    123,  99;    123, 
100;    128,  420;     130,  447. 

Judicial  powers,  persons  having,  order  enforced  before: 
Ante,  sec.  128,  subd.  2. 

References  and  trials  by  referees:  See  post,  sees.  638 
et  seq. 

Subd.  4.  Fees  of  notaries  public:  See  Pol.  Code,  sec. 
798. 

Justices  of  the  peace  and  court  commissioners  are  the 
only  judicial  officers  who  are  authorized  to  receive  fees: 
Const.  Cal.,  art.  6,  sec.  15. 

Subd.  5.    Official  seals  defined:  See  ante,  sec.  14. 

Code  Civil  Proc.— T. 


§§  282,  265       OF  MINISTERIAL  OFFICERS  GENERALLY.  V8 

TITLE  IV. 

MINISTERIAL  OFFICERS    OF    COURTS   6f    JUSTICE. 

Chapter  I.    Of   Ministerial   Officers   Generally,    §   262. 

II.    Secretaries  and  Bailiffs  of  the  Supreme  Court, 
§§  265,  266. 
HI.    Phonographic   Reporters,    §§    268-274. 


CHAPTER  I. 

OP  MINISTERIAL   OFFICERS    GENERALLY. 
§  262.    Election,    powers,    and   duties,    where   prescribed. 

§  262.  Election,  powers,  and  duties,  where  prescribed. 
The  modes  and  times  of  election,  terms,  powers,  and  duties 
of  the  attorney  general,  clerk  of  the  supreme  court,  re- 
porter of  the  decisions  of  the  supreme  court,  clerks,  sher- 
iffs, and  coroners,  are  prescribed  in  the  Political  and  Penal 
Codes.    En.  March  11,  1872.    Am'd.  1880,  52. 

Attorney  general:   See  Pol.  Code,  sees.  470  et  seq. 

Clerk  of  supreme  court:  Pol  Code,  sees.  749  et  seq. 

Reporter  of  supreme  court  decisions:  Pol.  Code,  sees.  771 
et  seq. 

County  clerks:  Pol.  Code,  sees.  4204  et  seq. 

Sheriffs:  Pol.  Code,  sec.  4176;  Pen,  Code,  sees.  1216  et 
seq.;    1601  et  seq. 

Coroners:  Pol.  Code,  sees.  4285  et  seq.;  Pen.  Code,  sec. 
1510. 


CHAPTER  n. 

SECRETARIES   AND   BAILIFFS  OF  THE   SUPREME   COURT. 

5266.    Appointment. 
266.    Tenun)  of  office,   and  duties. 

§.265.  Appointment.  The  Justices  of  the  supreme  court 
may  appoint  two  secretaries  and  two  hailiffs,  who  shall  be 
citizens  of  the  United  States  and  of  this  state.  En.  March 
11,  1872.     Am'd.  1880,   53. 


98  PHONOGRAPHIC  REPORTERS.  §§  2Gfl-:63 

§  266.  Tenure  of  office,  and  duties.  The  secretaries  and 
bailiffs  shall  hold  their  offices  at  the  pleasure  of  the  jus- 
tices, and  shall  perform  such  duties  as  may  be  required  of 
them  bv  the  court  or  any  justice  thereof.  En.  March  11, 
1872.    Am'd.  1880,   53. 

Cal.  Rep.  Cit.     83,  118. 


CHAPTER  III. 

PHONOGRAPHIC    REPORTERS. 

8  268.  PhonogTftphlc  reporters  for  supreme  court,   where  provided  for. 

§  269.  Phonographic    reporters    for   superior    courts,    their    appointment, 

and    duties. 

8  270.  Qualiflcatlons  and  test  of  competency. 

I  271.  Attention   to   duties,   reporters  pro   tempore. 

S  272.  Oath   of  office. 

8  273.  Reports    prima    facie    correct    statements. 

§  274.  Compensation. 

Gen.  Cit.  to  Chap.— Cal.  Rep.  Clt.  127,  426. 

§  268.  Phonograpfiic  reporters  for  supreme  court,  where 
provided  for.  Phonographic  reporters  for  the  supreme 
court  are  provided  for  in  part  three  of  the  Political  Code. 
En.   Stats.    1880,    53. 

Cal.  Rep.   Cit.    127,  160. 

Phonographic  reporters:  See  Pol.  Code,  sec.  789  as  to 
salary;  sec.  769  as  to  appointment;  and  sec.  770  as  to  duty 
of  phonographic  reporter  of  supreme  court. 

§  269.  Phonographic  reporters  for  superior  courts,  their 
appointment,  and  duties..  The  judge  or  Judges  of  any  su- 
perior court  in  the  state  may  appoint  a  competent  phono- 
graphic reporter,  or  as  many  such  reporters  as  there  are 
judges,  to  be  known  as  official  reporter  or  reporters  of 
such  court,  and  to  hold  office  during  the  pleasure  of  the 
judge  or  judges  appointing  them.  Such  reporter,  or  any 
one  of  them,  where  there  are  two  or  more,  must,  at  the 
request  of  either  party,  or  of  the  court  in  a  civil  action  or 
proceeding^  and  on  the  order  of  the  court,  the  district  attor- 
ney, or  the  attorney  for  defendant  in  a  criminal  action  or 
proceeding,  take  down  in  shorthand  all  the  testimony,  the 
objections  made,  the  rulings  of  the  court,  the  exceptions 
taken,  all  arraignments,  pleas  and  sentences  of  defendants 
in  criminal   cases,   the  arguments  of  the   prosecuting  at- 


S  §  270,  271        PHONOGRAPH  .C  REPORTERS.  100 

torney  to  the  jury,  and  all  statements  and  /©marks  made 
and  oral  Instructions  given  by  the  judge;  and  If  directed 
by  the  court,  or  requested  by  either  party,  must,  within 
such  reasonable  time  after  the  trial  of  such  case  as  the 
court  may  designate,  write  out  the  same,  or  such  specific 
portions  thereof  as  may  be  requested,  in  plain  and  legible 
longhand,  or  by  typewriter,  or  other  printing  machine,  and 
certify  to  the  same  as  being  correctly  reported  and  tran- 
scribed, and  when  directed  by  the  court,  file  the  same  with 
the  clerk  of  the  court.  En.  March  11,  1872.  Am'd.  1878-4, 
288;    1880,   53;    1903,  234. 

Cal.  Rep.  Clt.    49,  354;    64,  234;    64,  237;    127,  426;    145, 
39;    145,  40. 

§  270.  Qualifications  and  test  of  competency.  No  per- 
son shall  be  appointed  to  the  position  of  official  reporter  of 
any  court  in  this  state,  except  upon  satisfactory  evidence 
of  good  moral  character,  and  without  being  first  examined 
as  to  his  competency  by  at  least  three  members  of  the  bar 
practicing  in  said  court,  such  members  to  be  designated 
by  the  judge  or  judges  of  said  court.  The  committee  of 
members  of  the  bar  so  designated  shall,  upon  the  request 
of  the  judge  or  judges  of  said  court,  examine  any  person 
as  to  his  qualifications  whom  said  judge  or  judges  may 
wish  to  appoint  as  official  reporter;  and  no  person  shall  be 
appointed  to  such  position  upon  whose  qualifications  such 
committee  shall  not  have  reported  favorably.  The  test  of 
competency  before  such  committee  shall  be  as  follows: 
The  party  examined  must  write  In  the  presence  of  said 
committee  at  the  rate  of  at  least  one  hundred  and  fifty 
words  per  minute,  for  five  consecutive  minutes,  upon  mat- 
ter not  previous^-y  written  by  or  known  to  him,  Immediately 
read  the  same  T)ack  to  the  committee,  and  transcribe  the 
same  into  longhand  writing,  plainly  and  with  accuracy.  If 
he  pass  such  test  satisfactorily,  the  committee  shall  fur- 
nish him  with  a  written  certificate  of  that  fact,  signed  by 
at  least  a  majority  of  the  members  of  the  committee, 
which  certificate  shall  be  filed  among  the  recJOrds  of  the 
court.    En.  March  11,  1872.    Am'd.  1873-4,  400;  1880,  53. 

Cal.  Rep.  Clt.  49,  854;    64,  234;    64,  237;    127,  426;    142, 
144. 

§  271.  Attention  to  duties,  reporters  pro  tempore.  The 
official  reporter  of  any  superior  court  shall  attend  to  the 
duties   of  his  office   In   person,   except  when   excused  for 


101  PHONOGRAPHIC    REPORTERS.  §§  272-274 

good  and  sufficient  reason  by  order  of  the  court,  which 
order  shall  be  entered  upon  the  minutes  of  the  court.  Em- 
ployment in  jiis  professional  capacity  elsewhere  shall  not 
be  deemed  a  good  and  sufficient  reason  for  such  excuse. 
When  the  official  reporter  of  any  court  has  been  excused  in 
the  manner  provided  in  this  section,  the  court  may  appoint 
an  official  reporter  pro  tempore,  who  shall  perform  the 
same  duties  and  'eceive  the  same  compensation  during 
the  term  of  his  employment  as  the  official  reporter.  En. 
March  11,  1872.     Am'd.  1873-4,  400;   1880,  54. 

Cal.  Rep.  Cit.    49,  354;    64,  234;    64,  237. 

§  272.     Oath  of  office.    The  official  reporter  of  any  court, 

OT  official  reporter  pro  tempore,  shall,  before  entering 
upon  the  duties  of  his  office,  take  and  subscribe  the  con- 
stitutional oath  of  office.  En.  Stats.  1873-4,  401.  Am'd. 
1880,  54. 

Cal.  Rep.  Cit.    49,  354;    57,  652;    64,  238. 

I  §73.  Reports  prima  facie  correct  statements.  The  re- 
port of  the  official  reporter,  or  official  reporter  pro  tempore, 
of  »jt-y  court,  duly  appointed  and  sworn,  when  transcribed 
and  certitled  as  boing  a  correct  transcript  of  the  testimony 
and  proceedings  in  the  case,  Is  prima  facie  evidence  of 
such  testimony  and  proceedings.  En.  Stats.  1873-4,  402. 
Am'd.  1880,  54;    1903,  234. 

Cal.  Rep.  Cit.     49,  354;    57,  652;    73,  208;    73,  209;    75, 
303;    76,  283;    131,  480. 

§  274.  Compensation.  For  his  services,  the  official  re- 
porter shall  receive  the  following  fees,  except  in  counties 
where  a  statute   provides  otherwise: 

For  reporting  testimony  and  proceedings,  ten  dollars  per 
day,  which  amount,  when  more  than  one  case  is  reported 
in  one  'lay,  must  be  apportioned  by  the  court  between  the 
several  cases. 

For  transcription,  for  one  copy,  twenty  cents  per  hun- 
dred words;  for  two  copies  made  at  one  time,  fifteen  cents 
each  per  hundred  words;  for  three  copies  made  at  one 
time,  eleven  cents  each  per  hundred  words;  for  four  copies 
made  at  one  time,  nine  cents  each  per  hundred  words;  and 
for  five  or  more  copies  made  at  one  time,  eight  cents  each 
per  hundred  words. 

In  criminal  cases,  the  fees  for  reporting  and  for  tran- 
scripts ordered  by  the  court  to  be  made  must  be  paid  p«t  of 


§    274  PHONOGRAPHIC  EEPORTERS.  102 

the  county  treasury  upon  the  order  of  the  court;  provided, 
that  when  there  is  no  official  reporter  in  attendance,  and  a 
reporter  pro  tempore  is  appointed  his  reasonable  expenses 
for  traveling  and  detention  must  be  fixed  and  allowed  by 
the   court  and   paid   in   like   manner. 

In  civil  cases,  the  fees  for  reporting  and  for  transcripts 
ordered  by  the  court  to  be  made  must  be  paid  by  the  par- 
ties in  equal  proportions,  and  either  party  may,  at  his  op- 
tion, pay  the  whole  thereof;  and,  in  either  case,  all 
amounts  so  paid  by  the  party  to  «rhom  costs  are  awarded 
must  be  taxed  as  costs  in  the  case.  The  fees  for  tran- 
scripts and  copies  ordered  by  the  parties  must  be  paid  by 
the  party  ordering  the  same.  No  reporter  must  be  re- 
quired to  perform  any  service  in  a  civil  case  until  his  fees 
therefor  have  been  paid  to  him  or  deposited  with  the 
clerk  of  the  court.  En.  Stats.  1873-4,  403.  Am'd,  1880,  54; 
1885,   218;   1903,  234. 

(Jal.  Rep.  Cit.  49,  354;  57,  652;  59,  583;  64,  237;  64, 
243;  68,  195;  68,  198;  68,  200;  83,  363;  83  364;  83, 
365;  86,  494;  93,  514;  93,  515;  120,  128;  124,  388; 
124,  647;  127,  356;  127,  158;  127,  159;  127,  160; 
127,  161;   127,  162;   135,  651;   145,  40;   145,  608.      ' 


103  ATTOENEYS,  ETC.,  AT  LAW.  §   275 


TITLE  Y. 

PEESONS  SPECIALLY  INVESTED  WITH  MINISTERIAL 
P0WP:RS  RELATING  TC   COURTS  OF  JUSTICE. 

Chapter  I.     Attorneys  and  Counselors  at  Law,  §§  275-299 

II.     Other    Persons    Invested    with    Such    Powers,    § 
304. 

CHAPTER   L 

ATTORNEYS   AND    COUNSELOBS   AT   J*AW. 

§  275.  Who  may  be  admitted  aa  attorneys. 

§  276.  Qualificationa, 

§  277.  Certificate  of  admission  and  llcenae. 

I  278.  Oath. 

§  279.  Attorneys  of  other  states. 

§  280.  Roll    of   attorneys. 

§  280a.  Effect  of  diploma  from  Hastings  Collage  of  Law. 

§  28L  Penalty   for   practicing   without   license. 

I  282.  Duties. 

5  283.  Authority. 

§  284.  Change    of   attorney. 

§  285.  Notice   of   change. 

§  286.  Death  or  removal  of  attorney. 

§  287.  Removal  and  suspension. 

§  288.  Conviction   of   felony. 

5  289.  Proceedings  for  removal  or  suspension. 

§  290.  Accusation. 

5  29L  Verification. 

I  292.  Citation. 

5  293.  Appearance. 

§  294.  Objections  to  accusation. 

§  295.  Demurrer. 

§  296.  Answer. 

§  297.  TriaL 

{  298.  Reference  to  take  depositions. 

§  299.  Judgment 

§  275.  Who  may  be  admitted  as  attorneys.  Any  citizen 
or  person  resident  of  this  state,  who  has  bona  fide  declared 
his  or  her  intentifn  to  become  a  citizen  in  the  manner  re- 
quired by  law,  of  the  age  of  twenty-one  years,  of  good 
moral  character,  and  who  possesses  the  necessary  qualifi- 
cations of  learning  and  ability,  is  entitled  to  admission  as 
attorney  and  counseloT  in  all  the  courts  of  this  state.  All 
persons  are  attorney?  of  the  supreme  court  who  were  on 
the  first  day  of  January,  eighteen  hundred  and  eighty,  en- 
titled to  practice  in  the  court  superseded  thereby.  En. 
March    11,    1872.     Am'd.    1877-8,    99;    1880,    55. 

Cal.  Rep.  Cit.     86,  85. 

Admission    of    attorneys:    See    sections    following    this. 
Judges   must   be    licensed   attorneys:    Ante,   sees.   156,   157. 


SS  276-278  ATTORNEYS.    ETC..    AT   LAW.  1M 

Judicial  and  ministerial  ofBcers,  not  to  practice:  See 
Pol.  Code,  sec.  4121;  sec.  171,  ante;  nor  to  have  a  partner: 
Sec.  172,  ante. 

Removal  of  attorneys:   See  post,  sec.  287. 

§  276.  Qualifications.  Every  applicant  for  admission 
as  an  attorney  and  counselor  must  produce  satisfactory 
testimonials  of  a  good  moral  character  and  undergo  a  strict 
examination  in  open  court  as  to  his  qualifications  by  the 
justices  of  one  of  the  district  courts  of  appeal.  En.  Manh 
11,  1872.  Am'd.  1873-4,  289;  1873-4,  404;  1880,  55;  1895, 
56;    1905,  5. 

Cal.  Rep.  CIt    86,  85;   126,  87. 

Examination  of  candidates.  See  supreme  court  rule  1. 

§  277.  Certificate  of  admission  and  license.  If,  upon  ex- 
amination, he  Is  found  qualified,  the  district  court  of  ap- 
peal, before  which  he  is  examined,  shall  admit  him  as  an 
attorney  and  counselor  in  all  the  courts  of  this  state,  and 
shall  direct  an  order  to  be  entered  to  that  effect  upon  its 
records,  and  that  a  certificate  of  such  record  be  given  to 
him  by  the  clerk  of  the  court,  which  certificate  shall  be 
his  license.  Every  person  admitted  to  practice  by  a  dis- 
trict court  of  appeal,  either  upon  examination,  or  upon 
the  production  of  a  license  from  another  state,  as  provided 
in  section  279  of  this  code,  may  practice  as  an  attorney  in 
all  of  the  courts  of  this  state,  including  the  supreme 
court;  and  every  person  now  entitled  to  practice  in  the 
supreme  court  of  this  state  may  practice  as  an  attorney 
In  any  district  court  of  appeal.  En.  March  11,  1872. 
Am'd.  1880,  56;  1905,  5. 

CaL  Kep.  Clt    86,  86;    146,  378. 

Disbarment:  See  post,  sees.  287  et  seq. 

S  278.  Oath.  Every  person,  on  his  admission,  must 
take  an  oath  to  support  the  constitution  of  the  United 
States  and  the  constitution  of  the  state  of  California,  and 
to  faithfully  discharge  the  duties  of  an  attorney  and  coun- 
selor at  law  to  the  best  of  his  knowledge  and  ability.  A 
certificate  of  such  oath  must  be  indorsed  upon  the  license. 
En.  Marc^  11,  1872.     Am'd.  1880,  56. 

Cal.  Rep.  Cit.     69,  34;    75,  92;    86,  86, 

Duties:  See  post,  sec.  282. 


UB  ATTORNEYS.    ETC.,    AT   LAW.  §§  279-281 

§  279.  Attorneys  of  other  states.  Every  citizen  of  the 
United  Slates,  or  person  resident  of  this  state,  who  has, 
bona  tide  declared  his  intention  to  become  a  citizen  in 
the  manner  required  by  law,  who  has  been  admitted  to 
practice  law  in  the  highest  court  of  a  sister  state,  or  of 
a  foreign  country,  where  the  common  law  of  England 
constitutes  the  basis  of  jurisprudence,  may  be  admitted 
to  practice  in  all  the  courts  of  this  state,  by  any  district 
court  of  appeal,  upon  the  production  of  his  or  her  license, 
and  satisfactory  evidence  of  good  moral  character;  but 
the  court  may  examine  the  applicant  as  to  his  or  her 
qualifications.  En.  March  11,  1872.  Am'd.  1877-8,  99; 
1880,  56;     1905,  6. 

CaL  Rep.  Cit.    61,  123;    61,  124;    84,  165;    146,  378. 

"State"  and  *TUiilted  States,"  defined:  Ante,  sec.  17, 
subd.  7. 

S  280.  Roll  of  attorneys.  Every  clerk  of  a  district 
court  of  appeal  shall  keep  a  roll  of  attorneys  and  coun- 
selors admitted  to  practice  by  the  court  of  which  he  is 
clerk,  which  roll  must  be  signed  by  the  person  admitted 
before  he  receives  his  license.  Every  clerk  shall,  each 
month,  certify  to  the  clerk  of  the  supreme  court  a  list  of 
the  persons  so  admitted  during  the  preceding  month, 
with  such  other  information  as  appears  in  regard  thereto 
on  his  roll,  and  the  clerk  of  the  supreme  court  shall  keep 
a  general  roll  of  all  the  attorneys  adanitted  to  practice. 
En,  March  11,  1872.    Am'd.  1880,  66;    1905,  6. 

CaL  Rep.  Cit.    86,  86. 

Attorneys  of  the  supremo  court:   Ante,  sec  275. 

§  280a.  Effect  of  diploma  granted  by  Hastings  College  of 
the  law.  Nothing  in  this  chapter  contained  shall  be  con- 
strued as  a  repeal  or  modification  of  any  existing  provi- 
sion of  law  relative  to  the  effect  of  a  diploma  granted  by 
the  Hastings  College  of  the  Law.    En.  Stats.  1905,  6. 

5  281.  Penalty  for  practicing  without  license.  If  any 
person  shall  practice  law  in  any  court,  except  a  justice's 
court  or  police  court,  without  having  received  a  license 
as  attorney  and  counselor,  he  shaJl  be  guilty  of  a  con- 
tempt of  court.    En.  March  11,  1872.    Am'd.  1880,  56. 

Cal.   Rep.  Cit.    86,  86. 

Contempt:   Post,  sees.  1209  et  seq. 
Justices'  court  practitioners:   Ante,  sec.  96. 


§§   282,  283  ATTORNEYS,  ETC.,  AT  LAW.  106 

§  282.  Duties.  It  is  the  duty  of  an  attorney  and  coun- 
selor: 

1.  To  support  the  constitution  and  laws  of  the  United 
States  and  of  this  state; 

2.  To  maintain  the  respect  due  to  the  courts  of  justice 
and  judicial  ofBcors; 

3.  To  counsel  or  maintain  such  actions,  proceedings,  or 
defenses  only  as  appear  to  him  legal  or  just,  except  the 
defense    of    a    person    charged    with    a    piihlic    oflFcnse; 

4.  To  employ,  for  the  purpose  of  maintaining  the  causes 
confided  to  him,  such  means  only  as  are  consistent  with 
truth,  and  never  seek  to  mislead  the  judge  or  any  judicial 
officer  by  an  artifice  or  false  statement  of  fact  or  law; 

5.  To  maintain  inviolate  the  confidence,  and  at  every 
peril   to   himself,   to   preserve   the   secrets   of   his   client; 

6.  To  abstain  from  all  oflfensive  personality,  and  to  ad- 
vance no  fact  prejudicial  to  the  honor  or  reputation  of  a 
party  or  witness,  unless  required  by  the  justice  of  the 
cause  with  which  he  is  charged; 

7.  Not  to  encourage  either  the  commencement  or  the  con- 
tinuance of  an  action  or  proceeding  from  any  corrupt 
motive  of  passion  or  interest; 

8.  Never  to  reject,  for  any  ccnsideratioD  personal  to 
himself,  the  cause  of  the  defenseless  or  the  oppressed.  En. 
March   11,   1872.     Am'd.   1880,   56. 

Cal.  Rep.  Cit.  64,  437;  69,  35;  86,  86;  130,  123;  147, 
19.  Subd.  1—69,  34.  Subd.  2—64,  598;  75,  92;  84, 
81;  86,  86;  105,  480.  Subd.  3—130,  123.  Subd.  4— 
64,  598;  67,  645;  71,  373;  130,  123.  Subd.  5—69,  34. 
Subd.  6—105,  477.     Subd.  7—84,  82. 

Subd.   1.     Oath:   Ante,  sec.  278. 

Subd.  3.  Offender,  public — defense  of:  See  Pen.  Code, 
sec.  987. 

Subd.  5.  Privileged  communications:  See  post,  sec. 
1881. 

§  283.  Authority.  An  attorney  and  counselor  shall  have 
authority : 

1.  To  bind  his  client  in  any  of  the  steps  of  an  action 
or  proceeding  by  his  agreement  filed  with  the  clerk,  or 
entered  upon  the  minutes  of  the  court,  and  not  other- 
wise; 

2.  To  receive  money  claimed  by  his  client  in  an  action 
or  proceeding  during  the  pendency  thereof,  or  after 
judgment,  unless  a  revocation  of  his  authority  is  filed, 
and  upon  the  payment  thereof,  and  not   otherwise,  to   dis- 


107  ATTORNEYS,  ETC.  AT  LAW.  §§   284-287 

charge  the  claim  or  acknowledge   satisfaction  of  the  judg- 
ment.    En.  March  11,  1872.     Am'd.  1886,  57. 

Cal.    Ecp.    Cit.    52,    240;    53,    29;    53,    661;    59,    479;    63, 

92;    86,    86;    91,    491;    116,    492;    129,    200;    129,    689; 

130,    42;    130,    406;    143,    496.     Subd.    1—52,    246;    62, 

491;    71,   465;    91,   490;    95,   287;    111,   277;    112,   609; 

116,   491;    117,   35;    129,   200;    130,   42:    130,   406:   135, 

201.     Subd.  2—53,  29. 

§  284.  Change  of  attorney.  The  attorney  in  an  action 
or  special  proceeding  may  be  changed  at  any  time  before 
or  after  judgment  or  final  determination,  as  follows: 

1.  Upon  consent  of  both  client  and  attorney,  filed  with 
the  clerk,  or  entered  upon  the  minutes; 

2.  Upon  the  order  of  the  court,  upon  the  application  of 
either  client  or  attorney,  after  notice  from  one  to  the  other. 
En.  March  11,  1872.     Am'd.  1873-4,  289;  1880,  57. 

Cal.  Eep.  Cit.  53,  222;  56,  372;  62,  491;  65,  193;   112,  355; 
118,  590;  142,  528.     Subd.  2—115,  88;    121, 166;  136, 172. 

Notice  of  substitution:  See  next  section. 

§  285.  Notice  of  change.  When  an  attorney  is  changed, 
as  provided  in  the  last  section,  written  notice  of  the  change 
and  of  the  substitution  of  a  new  attorney,  or  of  the  ap- 
pearance of  the  party  in  person,  must  be  given  to  the  ad- 
verse party.  Until  then  he  must  recognize  the  former  at- 
torney.    En.  March  11,  1872.     Am'd.  1880,  57. 

Cal.  Rep.  Cit.  53,  222;  56,  372;   56,  490;  62,  491;   65,  193; 
118,  590;  119,  108, 

§  286.  Death  or  removal  of  attorney.  When  an  at- 
torney dies,  or  is  removed  or  suspended,  or  ceases  to  act 
as  such,  a  party  to  an  action,  for  whom  he  was  acting  as 
attorney,  must  before  any  further  proceedings  are  had 
against  him,  be  required  by  the  adverse  party,  by  written 
notice,  to  appoint  another  attorney  or  to  appear  in  per- 
son.    En.   March   11,   1872.     Am'd.    1880,   57. 

Cal.  Eep.  Cit.  130,  289.     Subd.  1—107,  82.     Subd.  2—107, 
82. 

§  287.  Removal  and  suspension.  An  attorney  and  coun- 
selor may  be  removed  or  suspended  by  the  supreme  court, 
or  any  department  thereof,  or  by  any  superior  court  of  the 
state,  for  either  of  the  following  causes,  arising  after  his 
admission  to  practice; 


§§   288,   289  ATTORNEYS,  ETC.  AT  LAW.  108 

1.  His  conviction  of  a  felony  or  misdemeanor  involving 
mjral  turpitude,  in  which  case  the  record  of  conviction 
shall  be  conclusive  evidence; 

2.  Willful  disobedience  or  violation  of  an  order  of  the 
court  requiring  him  to  do  or  forbear  an  act  connected  with, 
or  in  the  course  of  his  profession,  which  he  ought  in  good 
faith  to  do  or  forbear,  and  any  violation  of  the  oath  taken 
by   him,   or   of   his   duties   as   such   attorney   and    counselor; 

3.  Corruptly  or  willfully  and  without  authority  appearing 
as  attorney  for  a  party  to  an  action  or  proceeding; 

4.  Lending  his  name  to  be  used  as  attorney  and  coun- 
selor by  another  person  who  is  not  an  attorney  and 
counselor. 

In  all  cases  where  an  attorney  is  removed  or  suspended 
by  a  superior  court  the  judgment  or  order  of  removal  or 
suspension  may  be  reviewed  on  appeal  by  the  supreme 
court.     En.  March  11,  1872.     Am'd.  1873-4,  289;   1880,  57. 

Cal.  Eep.  Cit.  61,  123;  61,  127;  61,  130;  67,  358;  69,  34; 
69,  59;  78,  308;  86,  87;  107,  82;  107,  83;  114,  368; 
123,  523;  146,  600;  147,  12;  147,  14.  Subd.  2—64,  598. 
Subd.  4—36,  86. 

Attorney  has  right  to  make  a  defense:  See  post,  sees. 
292  et  seq. 

Attorney  defending  prosecution  instituted  by  himself  or 
partner  forfeits  license:  See  Pen.  Code,  sec.  162. 

§  288.  Conviction  of  felony.  In  case  of  the  conviction 
of  an  attorney  or  counselor  of  a  felony  or  misdemeanor, 
involving  moral  turpitude,  the  clerk  of  the  court  in  which 
such  conviction  is  had  shall,  within  thirty  days  thereafter, 
transmit  to  the  supreme  court  a  certified  copy  of  the  record 
of  conviction.     En.  March  11,  1872.     Am'd.  1880,  57. 

Cal.  Eep.  Cit.  66,  400;  123,  523. 

§  289.  Proceedings  for  removal  or  suspension.  The 
proceedings  to  remove  or  suspend  an  attorney  and  coun- 
selor, under  the  first,  subdivision  of  section  two  hundred 
and  eigthy-seven  must  be  taken  by  the  court  on  the 
receipt  of  a  certified  copy  of  the  record  of  conviction. 
The  proceedings  under  the  second,  third,  or  fourth  sub- 
divisions of  section  two  hundred  and  eighty-seven  may 
be  taken  by  the  court  for  the  matters  within  its  knowl- 
edge, or  may  be  taken  upon  the  information  of  another. 
En.  March  1,  1872.     Am'd.  1880,  58. 


«09  ATTORNEYS,    ETC.,    AT   LAW.  IS  290-2^1 

§  290.  Accusation.  If  the  proceedings  are  upon  the  in- 
formation of  another,  the  accusations  must  be  in  writing. 
En.  March  11,  1872.    Am'd,  1880,  58. 

Cal.  Rep.  Cit.    58,  41;    102,  467. 

§  291.  Verification.  The  accusation  must  state  the 
matters  charged  and  be  verified  by  the  oath  of  some  per- 
son to  the  ettect  that  the  charges  therein  contained  are 
true.    En.  March  11,  1872.    Am'd.   1880,  58. 

CaL  Rep.  Cit.    58,  40;    58,  41;    102,  467;    147,  9;    147,  10. 

§  292.  Citation.  Upon  receiving  the  accusation,  the 
court  shall  make  an  order  requiring  the  accused  to  appear 
and  answer  it  at  a  specified  time,  and  shall  cause  a  copy 
of  the  order  and  of  the  accusation  to  be  served  upon  the 
accused  at  least  five  days  before  the  day  appointed  In  the 
order.    En.  March  11,  1872.    Am'd.  1880,  58. 

§  293.  Appearance.  The  accused  must  appear  at  the 
time  appointed  in  the  order  and  answer  the  accusation, 
unless  for  sufficient  cause  the  court  assign  another  day 
for  that  purpose.  If  he  do  not  appear,  the  court  may  pro- 
ceed and  determine  the  accusation  in  his  absence.  En. 
March  11,   1872.    Am'd.   1880,   58. 

§  294.  Objections  to  accusation.  The  accused  may  an- 
swer to  the  accusation  either  by  objecting  to  its  sufficiency 
or  denying  it.     En.  March  11,  1872.    Am'd.  1880,  58. 

§  295.  Demurrer.  If  he  object  to  the  sufficiency  of  the 
><ccusation,  the  objection  must  be  in  writing,  but  need  not 
be  in  any  specific  form,  It  being  sufficient  if  it  presents  in- 
telligibly the  grounds  of  the  objection.  If  he  deny  the 
accusation,  the  denial  may  be  oral  and  without  oath,  and 
must  be  entered  upon  the  minutes.  En.  March  11,  1872. 
Am'd-  1880,  58. 

§  296.  Answer.  If  an  objection  to  the  sufficiency  of  the 
accusation  be  not  sustained,  the  accused  must  answer  with- 
in such  time  as  may  be  designated  by  the  court  En. 
March  11,  1872,    Am'd.   1873-4,   290;    1880,  58. 

§  297.  Trial.  If  the  accused  plead  guilty,  or  refuse  to 
answer  the  accusation,  the  court  shall  proceed  to  judg- 
ment of  removal  or  suspension.  If  he  deny  the  matters 
charged,  the  court  shall,  at  such  time  as  it  may  appoint. 


5§  298-304  OTHER  PERSONS  SO  INVESTED.  110 

proceed  to  try  the  accusation,    ^n.  March  11,  1872.     Ara'd. 
1880,  58. 

Cal.   Rep.   Cit.    114,  370. 

§  298.  Reference  to  take  depositions.  The  court  may, 
In  its  discretion,  order  a  reference  to  a  committee  to  take 
depositions  in  the  matter.  En.  March  11,  1872.  Am'<. 
1880,  58. 

§  299.  Judgment.  Upon  conviction,  in  cases  arising 
under  the  first  subdivision  of  section  two  hundred  and 
eighty-seven,  the  judgment  of  the  court  must  be  that  the 
name  of  the  party  shall  be  stricken  from  the  roll  of  at- 
torneys and  counselors  of  the  court,  and  that  he  be  pre- 
cluded from  practicing  as  such  attorney  or  counselor  in 
all  the  courts  of  this  state;  and  upon  conviction  in  cases 
under  the  other  subdivisions  of  that  section,  the  judg- 
ment of  the  court  may  be  according  to  the  gravity  of  the 
offense  charged;  deprivation  of  the  right  to  practice  as 
attorney  or  counselor  in  the  courts  of  this  state  per- 
manently, or  for  a  limited  period.  En.  March  11,  1872. 
Am'd.  1873-4,   290;    1880,   58. 

Cal.  Rep.  Cit     67.  514;   78,  308;   107,  82. 


CHAPTER  n. 

OTHER    PERSONS    INVESTED    WITH    SUCH    POWERS. 
S  S04.    Receivers,     executors,     administrators,     and     guardians. 

§  304.  Receivers,  executors,  administrators,  and  guar- 
dians. The  appointment,  powers,  and  duties  of  receivers, 
executors,  administrators,  and  guardians,  are  provided  for 
and  prescribed  in  parts  two  and  three  of  this  code.  En. 
March   11,   1872.    Am'd.    1880,    59. 

Cal.   Rep.   Cit    56,   627. 

Receivers:  See   post,   sees.    564-569. 

Executors   and    administrators:   See   post,    Title    XL 

Guardians:  Post,  sees.  1747-1809. 

The  foregoing  section  ends  part  one,  which  was  entirely 
amended  and  the  foregoing  part  one,  adopted  as  a  substi- 
tute therefor,  by  act  approved  April  1,  1880 — Amendments 
1880,  21  (Ban.  ed.  63);  took  effect  Immediately — repealed 
all  acts  and  parts  of  acta  in  conflict  therewith. 


PART  II. 

OF  CIVIL  ACTIONS. 

Title  I.  Of  the  Forms  of  Civil  Actions,  §§  307-309. 

n.  Time  of  Commencing  Civil  Actions,  §§  312-363. 

III.  Parties  to  Civil  Actions,  §§  367-390. 

IV.  Place  of  Trial  of  Civil  Actions,  §§  392-400. 

V.  Manner  of  Commencing  Suit,  §§  405-416. 

VI.  Pleadings  in  Civil  Actions,  §§  420-476. 

VII.  Provisional  Kemedies  in  Civil  Actions,  §§  478-574. 

VIII.  Trial  and  Judgment  in  Civil  Actions,  §§  577-680%. 

IX.  Execution    of   the   Judgment   in    Civil   Actions,   §§ 
681-721. 

X.  Actions  in  Particular  Cases,  §§  726-827. 

XI.  Proceedings  in  Justices'  Courts,  §§  832-926. 

XII.  Proceedings    in    Civil    Actions    in    Police    Courts, 
§§  929-933. 

XITT.  Appeals  in  Civil  Actions,  §§  936-980. 

XIV.  Miscellaneous  Provisions,  §§  989-1059. 

TITLE  I. 

OF  THaj  FORM  OF  ClVHi  XCTICWS. 

!«0T.    One  form  of  olvll  aotlom  only. 
808.    Parties  to  actions,  how  dcBlgnated. 
S  309.    Bpeclal   Issues   not   made   by   pleadings,    how  tried. 

§  307.  One  form  of  civil  action  only.  There  Is  In  this 
state  but  one  form  of  civil  actions  for  the  enforcement  or 
protection  of  private  rights  and  the  redress  or  preventioa 
of  private  wrongs.     En.   March  11,  1872. 

Cal  Rep.  Clt.  69.  267;  76.  521;  88.  443;  98.  57;  99.  171; 
105,  408;    106.  657;    117.  6;    126.  684. 

Prac.  Act,  sec.  2.    En.  April  29,  1851. 
Cal.    Rep.    at.    1,    173. 

8  308.  Parties  to  actions,  how  designated.  In  ^iicb  ac- 
tion, the  party  complaining  Is  known  as  the  Pl^ii\tlff  ana 
the  adverse  party  as  the  defendant.    En.  March  11,  187^. 

Cal.    Rep.    Clt.    127.    637. 

Prac.  Act,  ssec.  2.    En.  April  29,  1851. 

Cal.  Rep.  Clt.     29,  166. 

(Ill) 


|§  809-8U  TIME   OF    COMMENCING    ACTIONS.  Ul 

§  309.  Special  Issues  not  made  by  pleadings,  how  trfed. 
A  question  of  fact  not  put  in  issue  by  the  pleadings  may  be 
tried  by  a  jury,  upon  an  order  for  the  trial,  stating  dis- 
tinctly and  plainly  the  question  of  fact  to  be  tried;  and 
Buch  order  is  the  only  authority  necessary  for  a  trial.  En. 
March    11,    1872. 

Cal.  Rep.  CIt.    67,  62. 

Prac.  Act,  sec.  3.     En.  April  29,  1851. 
Cal.    Rep.    CIt.    42,    628. 


TITLE  II. 

OF  THE  TIME  OF  COMMENCING  CIVIL  ACTIONS. 

Chapter  I.    The  Time  of  Commencing  Actions  in  General, 
§    312. 
n.    The  Time  of  Commencing  Actions  for  the  Re- 
covery  of  Real   Property,    §§   315-328. 
III.    The     Time    of.  Commencing    Actions      Other 
Than    for  the    Recovery  of    Real   Property, 
§§    335-349. 
rv.    General   Provisions   as  to   the   Time  of   Com- 
mencing Actions,  8§  350-363. 


CHAPTER  I. 

THE  TIME   OF  COMMBNCINa  ACTIONS  IN   QENEKAU 
{  812.    Commencement  of  civil   actions. 

§  312.  Commencement  of  civil  actions.  Civil  actions, 
without  exception,  &v,n  only  be  commenced  within  the 
periods  prescribed  In  thm  title,  after  the  cause  of  action 
shall  have  accmed,  unlesa  vLere,  in  special  cases,  a  dif- 
ferent limitation  Is  prescribed  by  statute.  En.  March  11, 
1872.    Am'd.    1897,    16. 

Oal.  Rep.  CIt.  54,  150;  74,  479;  89,  538;  92,  629;  99,  503; 
99,  614;  115,  172;  121,  1£8;  134,  468;  IH,  470;  K3, 
228;   144,  248;   144,  249;   147,  558. 


U»  TIME   OF   COMMENCING   ACTIONS.  5§  315,  alG 

CJHAPTER  II. 

THE   TIME   OF  COMMENCING  ACTIONS   FOR  THE   RECOVERY   OB- 
REAL,    PROPERTY. 

§  315.    When   the   people    will   not   sue. 

§  316.    When   action   cannot   be   brought  by   grantee  from   the   state. 

§  317.    When   actions   hy  the  people  or  their  grantees  are   to  be   brought 

within   Ave   years. 
§  318.     Seisin  within  five  years,   when  necessary  in  action  for  real  prop- 
erty. 
§  319.     Such   seisin,   when  necessary  In  action  or  defense  arising  out  of 

title  to  or  rents  of  real  property. 
§  320.     Entry   on   real   estate. 
§  321.     Possession,    when     presumed.     Occupation     deemed     vmder     legal 

title,    unless   adverse. 
§  322.    Occupation  under  written  instrument  or  judgment,   when  deemed 

adverse. 
S  223.    What    constitutes    adverse    possession    under    written    Instrument 

or  Judgment. 
5  324.    Premises    actually    occupied    under   claim   of   title    deemed    to    be 

held  adversely. 
S  325.    What    constitutes    adverse    possession    under    claim    of    title    not 

written, 
g  326.     Relation   of  landlord   and  tenant,   as  affecting  adverse  possession. 

8327.     Right   of   possession  not   affected   by   descent   cast. 
328.     Certain    disabllUles    excluded    from    time    to    commence    actions. 

§  315.  When  the  people  will  not  sue.  The  people  of  this 
state  will  not  sue  any  person  for  or  in  respect  to  any  real 
property,  or  the  issues  or  profits  thereof,  by  reason  of  the 
right  or  title  of  the  people  to  the  same,  unless: 

1.  Such  right  or  title  shall  have  accrued  within  ten 
years  before  any  action  or  other  proceeding  for  the  same 
is  commenced;    or, 

2.  The  people,  or  those  from  whom  they  claim,  shall 
have  received  the  rents  and  profits  of  such  real  property, 
or  of  some  part  thereof,  within  the  space  of  ten  years. 
En.  March  11,  1873. 

Cal.   Rep.   Cit.     63,   807;     63,  310;     66,   563;     66,  564;     67, 
668;     83,  286;     83,  287;     83,  288;     98,  305;     98,  402, 

Title  by  occupancy:    Civ.   Code,   sec.   1007. 

§  316.  When  action  cannot  be  brought  by  grantee  from 
the  state.  No  action  can  be  brought  for  or  in  respect  to 
real  property  by  any  person  claiming  under  letters  patent 
or  grants  from  this  state,  unless  the  same  might  have 
been  commenced  by  the  people  as  herein  specified,  in 
case  such  patent  had  not  been  Issued  or  grant  made. 
En.   March  11,  1872. 

Cal.   Rep.   Cit.     63,  307;     63,  310;     67,  663;     83,   286;     83, 
287;     122,   157. 
Coda  Civil  Proc— 8. 


§§    317-319  TIME  OF  COMMENCING   ACTIONS.  114 

§  317.  Wlien  actions  by  the  people  or  their  grantees  are 
to  be  brought  within  five  years.  Wlun  Itttors  patent  or 
grauls  of  real  property  issued  or  made  by  the  people  of 
this  state  are  declared  void  by  the  determination  of  a 
competent  court,  an  action  for  the  recovery  of  the  prop- 
erty so  conveyed  may  be  brought,  either  by  the  people 
of  the  state,  or  by  any  subsequent  patentee  or  grantee  of 
the  property,  his  heirs  or  assigns,  within  five  years  after 
such  determination,  but  not  after  that  period.  En.  March 
11,  1872.     Am'd.  1873-4,  291. 

§  318.  Seisin  within  five  years,  when  necessary  in  ac- 
tion for  real  property.  No  action  for  the  recovery  of  real 
property,  or  for  the  recovery  of  the  possession  thereof, 
can  be  maintained,  unless  it  appear  that  the  plaintiff,  his 
ancestor,  predecessor,  or  grantor,  was  seised  or  possessed 
of  the  property  in  question,  within  five  years  before  the 
commencement  of  the  action.     En.  March  11,  1872. 

Cal.  Eep,  Cit.  48,  408;  55,  95;  58,  23;  63,  267;  63,  307 
65,116;  66,111;  67,663;  68,351;  68,351;  68,3,52 
68,  563;  69,  130;  71,  346;  71,  348;  72,  269;  77,  258 
80,  465;  80,  495;  80,  503;  83,  287;  84,  543;  84,  586 
85,443;  89,538;  90,228;  91,413;  91,415:  91,502 
02,  454;  92.  666;  95,  125';  90,  312;  96,  465;  97,  52 
97,157;  101,243;  101,244;  109,275;  112,441;  112 
412;  112,443;  117,57;  119,312;  122,50;  122,157 
124,  480;  125,  259;  129,  9;  129,  674;  132,  78;  132 
117;  137,  530;  138.  229;  138,  2.'50;  139,  97;  140,  144 
140,  145;  140,  146; '  140,  147;  140,  148;  144,  27;  144 
45;  144,  455;  14.5,  118;  146,  580;  147,  557;  147,  558 
147,  559. 

Adverse  possession.     Sees.  321  et  seq.,  infra. 

Trespass  upon  real  property,  action  for,  must  be 
brought  within  three  years:    Sec.  338,  post. 

Possession,  presumptive  evidence  of  ownership:  See 
post,  sec.  1963,  subd.  11. 

Action  includes  a  special  proceeding  of  a  civil  nature: 
Sec.  303,  post. 

§  319  Such  seisin,  when  necessary  in  action  or  defense 
arising  out  of  title  to  or  rents  of  real  property.  No  cause 
of  action,  or  defense  to  an  action,  arising  out  of  the  title 
to  real  property,  or  to  rents  or  profits  out  of  the  same, 
can  be  effectual,  unless  it  appear  that  the  person  prose- 
cuting the  action,  or  making  the   defense,  or  under  whose 


lis  TIME    OF    COMMENCING    ACTTON3.  |§  S20-322 

title  the  action  is  prosecuted  or  tlie  defense  is  made,  or 
the  ancestor,  predecessor  or  grantor  of  such  person,  was 
seised  or  possessed  of  the  premises  in  question  within 
five  years  before  the  commencement  of  the  act  in  respect 
to  which  such  action  is  prosecuted  or  defense  made.  En, 
March  11,  1872. 

Cal.  Rep.  Cit  55,  95;  58,  23;  63,  307;  65,  116;  66,  111 
67,  333;  68,  348;  68,  351;  69,  130;  71,  39;  71,  346 
71,  348;  72,  2C9;  73,  294;  77,  258;  80,  4G5;  83,  287 
84,  543;  84,  586;  85,  443;  86,  529;  90,  228;  91,  413 
91,  415;  92,  454;  96,  465;  109,  269;  109,  275;  112 
441;  117,  57;  119,  312;  122,  157;  124,  449;  125,  259 
129,  9;  132,  78;  132,  117;  138,  229;  138,  230;  144, 
45, 
Action  includes  a  special  proceeding  of  a  civil  nature: 

Post,  sec.  363. 

§  320.  Entry  on  real  estate.  No  entry  upon  real  estate 
is  deemed  sufiicient  or  valid  as  a  claim,  unless  an  action 
be  commenced  thereupon  within  one  year  after  making 
such  entry,  and  within  five  years  from  che  time  when  the 
right  to  malce  it  descended  or  accrued.  En,  March  11, 
1872, 

Cal,  Rep.  Cit,     63,  307;    66,  111;    109,  269;    125,  259, 

§  321.  Possession,  when  presumed.  Occupation  deenned 
under  legal  title,  unless  adverse.  In  eveiT  action  for  the 
recovery  of  real  property,  or  the  possession  thereof,  tha 
person  establistiing  a  legal  title  to  the  property  is  pre- 
sumed to  have  been  possessed  thereof  within  the  time  re- 
quired by  law,  and  the  occupation  of  the  property  by  any 
other  person  is  deemed  to  have  been  under  and  in  sub- 
ordination to  the  legal  title,  unless  it  appear  that  the 
property  has  been  held  and  possessed  adversely  to  such 
legal  title,  for  five  years  before  the  commencement  of  the 
action.     En.   March  11,  1872, 

Cal.  Rep,  Cit  63,  267;  63,  595;  65,  444;  71,  348;  83, 
287;  103,  90;  109,  269;  138,  229;  138,  230;  144,  45; 
146,   67. 

Adverse  possession:    Post,  sees.   322-325. 

Forcible  entry,   jne  year:    Post,  sec.  1172. 

Payment  of  taxes:    See  sec.   325,   infra. 

§  322.  Occupation  under  written  instrument  or  judg- 
ment, when  deemed  adverse.  When  it  appears  that  the  oc- 
cupant or  those  under  whom  he  claims,  entered  into  the 


5§  S23.  »4  TIME    OF    COMMENCING    ACTIONS.  t» 

possession  of  the  property  under  claim  of  title,  exclusive 
of  other  right,  founding  such  claim  upon  a  written  in- 
strument, as  being  a  conveyance  of  the  property  in  ques- 
tion, or  upon  the  decree  or  judgment  of  a  competent 
court,  and  that  there  has  been  a  continued  occupation 
and  possession  of  the  property  Included  In  such  instru- 
ment, decree,  or  judgment,  or  of  some  part  of  the  prop- 
erty, under  such  claim,  for  five  years,  the  property  so  in- 
cluded is  deemed  to  have  been  held  adversely,  except 
that  when  it  consists  of  a  tract  divided  into  lots,  the  pos- 
session of  one  lot  is  not  deemed  a  possession  of  any  other 
lot  of  the  same  tract.     En.  March  11,  1872. 

CaL  Rep.   Cit.     63,  153;     63,  595;     65,  444;     65,   445;     66, 

111;     68,  592;    73,  294;    74,  16;    77,  487;    84,  543;     85, 

443;    86,  529;    92,  GG7;    92,  6C8;    97,  26;    97,  273;    97. 

378;    109,  269;    132,  123;    139,  102;    144,  45;    144,  596. 

Entry  not  under  written  instrument:    See  post,  sec.  325. 

§  323.  What  constitutes  adverse  possession  under  writ^ 
ten  instrument  or  judgment.  For  the  purpose  of  constitut- 
ing an  adverse  possession  by  any  person  claiming  a  title 
founded  upon  a  written  instrument,  or  a  judgment  or  de- 
cree, land  is  deemed  to  have  been  possessed  and  occupied 
in  the  following  cases: 

1.  Where   it  has   been  usually   cultivated  or  improved; 

2.  Where  it  has  been  protected  by  a  substantial  inclos- 
ure; 

3.  Where,  although  not  inclosed,  it  has  been  used  for 
the  supply  of  fuel,  or  of  fencing  timber  for  the  purposes 
of  husbandry,  or  for  pasturage,  or  for  the  ordinary  use 
of  the  occupant; 

4.  Where  a  known  farm  or  single  lot  has  been  partly 
improved,  the  portion  of  such  farm  or  lot  that  may  have 
been  left  not  cleared,  or  not  inclosed  according  to  the 
usual  course  and  custom  of  the  adjoining  country,  shall 
be  deemed  to  have  been  occupied  for  the  same  length  of 
time  as  the  part  improved  and  cultivated.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.  63,  153;  63,  595;  65,  119;  65,  120;  68, 
352;  68,  592;  71,  348;  74,  16;  83,  287;  84,  543;  94, 
662;  107,  106;  128,  187;  128,  458;  133,  79;  139,  102; 
146,  162.  Subd.  1—68,  531.  Subd.  2—65,  444.  Subd. 
3—68,  349;     68,  351;     92,  668. 

§  324.  Premises  actually  occupiel  under  claim  of  title 
deemed  to  be  held  adversely.  Where  it  appears  that  there 
has  been  an  actual,  continued  occupation  of  land,  under  a 


117  TIME   OF    COMMENCING    ACTIONS.  §§  325.  326 

claim  of  title,  exclusive  of  any  other  right,  but  not 
founded  upon  a  written  instrument,  judgment,  or  decree, 
the  land  so  actually  occupied,  and  no  other,  is  deemed 
to  have  been  held  adversely.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     63,  595;  83,  287;  84,  543;  89,  201;  91,  361; 
128,    187;    144,    596. 

Prescription,  title  by:  Civ.  Code,  sec.  1007. 

§  325.  What  constitutes  adverse  possession  under  claim 
of  title  not  written.  For  the  purpose  of  constituting  an 
adverse  possession  by  a  person  claiming  title,  not  founded 
upon  a  written  instrument,  judgment,  or  decree,  land  is 
deemed  to  have  been  possessed  and  occupied  in  the  follow- 
ing cases  only: 

1.  Where  it  has  been  protected  by  a  substantial  inclos- 
use. 

2.  Where  it  has  been  usually  cultivated  or  improved. 

Provided,  however,  that  in  no  case  shall  adverse  posses- 
sion be  considered  established  under  the  provision  of  any 
section  or  sections  of  this  code,  unless  it  shall  be  shown 
that  the  land  has  been  occupied  and  claimed  for  the  period 
of  five  years  continuously,  and  the  party  or  persons,  their 
predecessors  and  grantors,  have  paid  all  the  taxes,  state, 
county,  or  municipal,  which  have  been  levied,  and  as- 
sessed upon  such  land.  En.  March  11,  1872.  Am'd.  1877- 
8,   99. 

Cal.  Rep.  Cit    54,  553;   59,  289;   59,  579;   63,  11;  63,  264; 

63,  267;  63,  268;  63,  593;  63,  595;  65,  57;  65,  440; 
68,  352;  68.  622;  69,  132;  70,  396;  71,  348;  71,  459; 
71,  478;  72,  378;  73,  192;  73,  195;  74,  19;  75,  123; 
77.  303;  79,  589;  83,  287;  84,  543;  85,  629;  89,  199; 
89,  201;  S9,  538;  91,  360;  91,  361;  97,  269;  97,  270; 
97.  274;  99,  675;  103,  90;  107,  316;  109,  272;  114,  285; 
114,  287;  114,  299;  117,  149;  119,  22;  120,  334;  120,  338; 
120,  340;  121,  73;  126,  552;  128,  187;  130,  272;  132,  123; 
144,   596;    146,   67. 

Adverse  possession:  See  ante,  sec,  321. 

§  326,  Relation  of  landlord  and  tenant,  as  affecting 
adverse  possession.  When  the  relation  of  landlord  and 
tenant  has  existed  between  any  persons,  the  possession  of 
the  tenant  is  deemed  the  possession  of  the  landlord  until 
the  expiration  of  five  years  from  the  termination  of  the 
tenancy,  or  where  there  has  been  no  written  lease.until 
the  expiration  of  five  years  from  the  time  of  the  last  pay- 


|§  327.  328  TIME   OF   COMMENCING    ACTIONS.  "« 

ment  of  rent,  notwithstanding  that  such  tenant  may  have 
acquired  another  title,  or  may  have  claimed  to  hold  ad- 
versely to  his  landlord.  But  such  presumption  cannot  be 
made  after  the  periods  herein  limited.  En.  March  11, 
1872. 

Cal.  Rep.  Cit    54,  383;  63,  153;  66,  478;  67,  393;  72,  310; 
107,    106;    114,    299. 

Tenant  denying  landlord's  title:  Post,  see.  1962,  subd.  4. 

§  327.  Right  of  possession  not  affected  by  descent  cast. 
The  right  of  a  person  to  the  possession  of  real  property 
is  not  impaired  or  affected  by  a  descent  cast  in  conse- 
quence of  the  death  of  a  person  in  possession  of  such 
property.     En.  March  11,  1872. 

Cal.  Rep.   Cit     91,   361. 

§  328.  Certain  disabilities  excluded  from  time  to  com- 
mence actions.  If  a  person  entitled  to  commence  an  ac- 
tion for  the  recovery  of  real  property,  or  for  the  recovery 
of  the  possession  thereof,  or  to  make  any  entry  or  defense 
founded  on  the  title  to  real  property,  or  to  rents  or  ser- 
vices out  of  the  same,  is,  at  the  time  such  title  first  de^ 
Bcends  or  accrues,   either: 

1.  Under  the  age  of  majority; 

2.  Insane. 

3.  Imprisoned  on  a  criminal  charge,  or  in  execution 
upon  conviction  of  a  criminal  offense,  for  a  term  less 
than    life; 

The  time,  not  exceeding  twenty  years,  during  which  such 
disability  continues  is  not  deemed  any  portion  of  the  time 
in  this  chapter  limited  for  the  commencement  of  such  ac- 
tion, or  the  making  of  such  entry  or  defense,  but  such 
action  may  be  commenced,  or  entry  or  defense  made,  with- 
in the  period  of  five  years  after  such  disability  shall  cease, 
or  after  the  death  of  the  person  entitled,  who  shall  die 
under  such  disability;  but  such  action  shall  not  be  com- 
menced, or  entry  or  defense  made,  after  that  period.  En. 
March  11,  1872.    Am'd.  1903,  177. 

Cal.  Rep.  Cit.     61,  597;   61,  599;  61,  601;  66,  111;   66,  516; 
104,   453;    109,   275. 

War:  Post,    sec.    354. 

Absence  from   state:   See  post,   sec.   351. 

Successive  disabilities:   See  post,  sec.  358. 


Ua  TIME   OF   COMM.ENCING  ACTIONS.  J5  »■*  .W 


CHAPTER   in. 

THE    TIME   OF   COMMENCING    ACTIONS    OTHER   THAN    FOK    THM 
RECOVERY   OF   REAL.  PROPERTY. 

f  335.  Periods   of  limitation   prescribed. 

I  336.  Within    five    years. 

{  337.  Within    four    years. 

§  338.  Within   three   years. 

I  339.  Within    two    years. 

§  340.  Within    one   year. 

§  341.  Within   six  montha. 

§  342.  Same. 

§  343.  Actions   for   relief  not   hereinbefore  provided   for. 

§  344.  Where   cause   of   action   accrues   on   mutual   accotmt. 

§  346.  Actions  by   the  people  subject  to  the  limitations  of  this  chapter. 

§  346.  Action  to  redeem  mortgage. 

§  347.  Same,   when   seme  of  mortgagors  are  not  entitled   to  redeem 

S  348.  No   limitations   where   money   deposited   In   bank. 

§  343.  Time  for  commencing  actions  under   "local   Improyemenf '   act 

§  335.  Periods  of  limitation  prescribed.  The  periods 
prescribed  for  the  comTnencement  of  actions  other  than 
for  the  recovery  of  real  property,  are  as  follows:  E^n. 
March    11,    1872. 

Cal.  Rep.  Cit.  64,  82;  68,  355;  71,  529;  73,  611;  112,  444; 
121,  198;    144,  248;    144,  249. 

§  336.     Within   five   years. 

Within  five  years. 

1.  An  action  upon  a  judgment  or  decree  of  any  court  of 
the  United  States,  or  of  any  state  within  the  United  States. 

2.  An  action  for  mesne  profits  of  real  property.  En. 
March  11,   1872.     Am'd.    1873-4,   291. 


C.  C.  P.,  IfcOG. 

§  337.     Within  four  years: 

An  action  upon  any  contract,  obligation,  or  liability, 
founded  upon  an  iuslrunient  in  writing  executed  within 
this  state;  provided,  that  wherever  the  time  within  which 
any  such  action  must  be  so  commenced  would  in  any  case 
expire  by  the  terms  of  this  section  after  the  first  day  of 
June,  one  thousand  nine  hundred  and  six,  and  before  the 
first  day  of  .Tanuary,  one  thousand  nine  hundred  and  seven, 
Fuch  action  may  be  commenced  at  any  time  before  the 
finst  day  of  January,  one  thousand  nine  hundred  and  seven, 
with  the  same  force  and  effect  as  if  commenced  within  four 
ytars,  as  in  this  section  provided.      [Tn  effect  June  3,  1906.] 


S  338  TIME   OF   COMMENCING    ACTruNa.  13 

99,  C59;   106,  18;  108,  5C8;  110,  152;   110,  2J«;   ITl, '<3^ 
111,  337;  111,  340;  111,  342;   112,  78;  114,  37;  115,  1315 

116,  235;  116,  338;  116,  356;  116,  598;  116,  590;  llf,  ft 

117,  7;  121,  198;  121,  250;  122,  414;  122,  418;  122,  53a 
123,  265;  123,  350;  124,  156;  124,  449;  124,  510;  127 
191;  127,  529;  127,  530;  128,  469;  128,  474;  128,  543 
129,  375;  129.  416;  130,  337;  130,  656;  131,  200;  132 
160;  132,  196;  132,  423;  132,  454;  132,  597;  133,  36 
134,  15;  134,  16;  134,  278;  134,  443;  134,  447;  135,  258 
136,  242;  136,  589;  138,  660;  142,  473;  142,  475;  144, 
248;    144,  249;    145,   627. 

Four  years'  limitation  where  no  other  provision:  Post, 
sec.    343. 

§  338.     Within  three  years. 
Within  three   years: 

1.  An  action  upon  a  liability  created  by  statute  other 
than  a  penalty  or  forfeiture; 

2.  An  action  for  trespass  upon  real  property; 

3.  An  action  for  taking,  detaining,  or  injuring  any  goods 
or  chattels,  including  actions  for  the  specific  recovery  ttf 
personal  property; 

4.  An  action  for  relief  on  the  ground  of  fraud  or  mic- 
take.  The  cause  of  action  in  such  case  not  to  be  deenK^d 
to  have  accrued  until  the  discovery,  by  the  aggrieved 
party,  of  the  facts  constituting  the  fraud  or  mistake.  En. 
March   11,   1872. 

CaL  Rep.  Clt.  59,  145;  71,  125;  72,  335;  75,  538;  81,  337; 
90,  59;  90,  60;  91,  502;  96.  312;  99,  596;  100,  645; 
104,  405;  108,  568;  110,  153;  112,  88;  112,  89;  112, 
442;  112,  444;  115,  175;  115,  176;  115.  177;  117.  5;  117, 
7;  117.  504;  127,  508;  129,  375;  132,  597;  132,  598;  137, 
68;  137,  529;  137,  530;  134,  315;  140,  145;  140,  146; 
140,  148;  142,  385;  144,  90.  Subd.  1—61,  213;  68.  355; 
71,  73;  73,  611;  76,  124;  77,  377;  82,  653;  90,  56;  92, 
628;  92,  629;  96,  492;  99,  595;  103,  596;  104,  260;  115, 
172;  117,  359;  125,  409;  127,  167;  127,  259;  131,  200; 
131,  404;  131,  665;  132,  591;  132.  592;  141.  97;  145, 
703;  145,  704;  145,  712.  Subd.  2—67.  53;  78,  151; 
92,  158;  117,  308;  122,  508;  12.2,  645;  129,  9;  129,  11; 
142,  384;  142,  448.  Subd.  3—55,  557;  61,  214;  67,  156; 
77,  211;  122,  284;  137,  259.  Subd.  4—52,  620;  59,  282; 
67,  155;  71,  126;  71,  144;  71,  529;  73,  454;  74,  305; 
82,  59;  85,  508;  91,  577;  93,  557;  97,  548;  99,  81;  93, 
82;  99,  461;  99,  659;  100,  644;  106,  19;  107,  157;  108, 
425;  110,  152;  110,  295;  112,  441;  112,  .500;  113,  486; 
123,  165;    124,  480;   124,  529;    129,  375;    129.   643;    132, 


121  TIME   OF   COMMENCING  ACTIONS.  §  339 

461;    133,   37;    133,   603;    135,  169;    135,  251;    135,   601; 

137,   94;    140,   144;    140,   152;    142,   604;    144,   454;    144, 

455;    145,  703;   146,  579;    147,  617;    147,  620;    147,  745. 

Statutory  penalty:    See  sec.   340,  subd.  1, 

Executor   or  administrator — Limitation  of  actions  to  set 

aside  sale,  three  years:   Sec.  1573,  post. 

Corporations  and  stocklioldei's,  limitation  as  regards 
them:   See  post,  sec.  359. 

S  339.     Within  two  years. 

Within    twn    vpars* 

C.  C.  P.,   1906. 

§  3C9.     Within  two  years: 

1.  An  action  upon  a  contract,  obligation,  or  liability,  not 
founded  upon  an  instrument  of  writing,  or  founded  upon 
an   instrutnont  of  writing  executed  out  of  tiie  state. 

2.  An  action  against  a  sheriff,  coroner,  or  constable,  upon 
a  liability  incurred  by  tiie  doing  of  an  act  in  his  oflScial 
capacity,  and  in  virtue  of  his  oflSce,  or  by  the  omission  of  an 
oflicial  duty,  including  the  non-payment  of  money  collected 
upon  an  execution.  But  this  subdivision  does  not  apply  to 
an  action  for  an  escape. 

Provided,  that  wherever  the  time  within  which  any  action 
mentioned  in  this  section  must  be  so  commenced  would  in 
any  case  expire  by  the  terms  of  this  section  after  the  first 
day  of  June,  one  thousand  nine  hundred  and  six,  and  before 
the  first  day  of  January,  one  thousand  nine  hundred  and 
seven,  such  action  may  be  commenced  at  any  time  before 
tlie  first  day  of  .January,  one  thousand  nine  hundred  and 
seven,  with  the  same  force  and  effect  as  if  commenced 
within  two  years  as  in  this  section  provided.  [In  effect 
Juue  3,  1906.] 


y8,  2296;  98,  299;  99,  595;  99,  659;  lUl,  156;  1U2, 
380;  106,  18;  107,  59;  108,  568;  109,  218;  110,  537; 
111,  336;  114,  37;  115,  141;  115,  175;  116,  256;  116, 
475;  117,  308;  117,  359;  120,  28;  120,  161;  120,  434; 
121,  589;  122,  106;  122,  508;  122,  509;  122,  645;  127, 
591;  128,  535;  129,  9;  129,  12;  129,  375;  129,  525; 
130,  334;  130,  335;  130,  337;  131,  7;  131,  439;  132, 
483;  132,  592;  1S2,  598;  134,  28;  137,  385;  140,  93; 
140,  200;  143,  132;  145,  703;  145,  704;  147,  511. 
Subd.  2—61,  213;  76,  606;  76,  607;  130,  498;  132, 
596;    135,  102. 


i  338  TIME    OF   COMl\IENCIXG    ACnoNS.  120 

99,  659;  106,  IS;  lOS,  568;  110,  152;  110,  289;  111,  ^3^^; 
111,  337;  111,  340;  111,  342;   112,  78;  114,  37;   115,  1315; 

116,  235;  116,  338;  116,  356;  116,  598;  116,  590;   11/,  5; 

117,  7;  121,  198;  121,  250;  122,  414;  122,  418;  122,  B3a; 
123,  265;  123,  350;  124,  156;  124,  449;  124,  510;  127, 
191;  127,  529;  127,  530;  128,  469;  128,  474;  128,  543; 
129,  375;  129,  416;  130,  337;  130,  656;  131,  200;  132. 
160;  132,  196;  132,  423;  132,  454;  132,  597;  133,  36; 
134,  15;  134,  16;  134,  278;  134,  443;  134,  447;  135,  258; 
136,  242;  136,  589;  138,  660;  142,  473;  142,  475;  144, 
248;    144,  249;    145,   627. 

Four   vftars'    liTr.Uo*:'^-    — ' — 


X31,  404;  131,  665;  132,  591;  132,  592;  141,  97;  145, 
703;  145,  704;  145,  712.  Subd.  2—67,  53;  78,  151; 
92,  158;  117,  308;  122,  508;  122,  645;  129,  9;  129,  11; 
142,  384;  142,  448.  Subd.  3—55,  557;  61,  214;  67,  156; 
77,  211;  122,  284;  137,  259.  Subd.  4—52,  620;  59,  282; 
67,  155;  71,  126;  71,  144;  71,  529;  73,  454;  74,  305; 
82,  59;  85,  508;  91,  577;  93,  557;  97,  548;  99,  81;  93, 
82;  99,  461;  99,  659;  100,  644;  106,  19;  107,  157;  108, 
425;  110,  152;  110,  295;  112,  441;  112,  .500;  113,  486; 
123,  165;    124,  480;    124,  529;    129,  375;    129,   643;    132, 


121  TIME    OF   COMMENCING   ACTIONS.  §  339 

4G1-    133    37;    133,  603;    135.  169;    135,  251;    135,   601; 
137*  94-    140     144;    140,   152;    142,   604;    144,   454;    144, 
455;    145,  703;   146,  579;    147,  617;    147,  620;    147,  745. 
Statutory  penalty:    See  sec.   340,  subd.  1. 
Executor   or  administrator— Limitation  of  actions  to  set 
aside  sale,  three  years:   Sec.  1573,  post. 

Corporations  and  stockholders,  limitation  as  regards 
them:   See  post,  sec.  359. 

S  339.     Within  two  years. 

Within   two   years; 

1.  An  action  upon  a  contract,  ohligatlon,  or  hahility, 
not  founded  upon  an  instrument  of  writing,  or  founded 
upon  an  instrument  of  writing  executed  out  of  the  state. 

2.  An  action  against  a  sheriff,  coroner,  or  constable, 
upon  a  liability  incurred  by  the  doing  of  an  act  in  his 
official  capacity,  and  in  virtue  of  his  office,  or  by  the 
omission  of  an  official  duty,  including  the  nonpayment  of 
money  collected  upon  an  execution.  But  this  subdivision 
does  not  apply  to  an  action  for  an  escape.  En.  March  11, 
1872.     Am'd.   1873-4,   292;     1905,   231. 

Cal.  Rep.  Cit  50,  613;  52,  45;  59,  145;  61,  213;  61,  214; 
68  358;  68,  391;  70,  417;  71,  294;  73,  611;  74,  68; 
75  274;  82,  261;  84,  92;  84,  93;  87,  265;  90,  66; 
90'  67;  101,  157;  106,  21;  107,  66;  111,  340;  111, 
342;  116.  482;  117,  5;  117,  7;  117,  504;  120.  483; 
123  265;  124.  156;  127,  508;  128,  536;  128,  542; 
128;  543;  128,  547;  129,  525;  137.  258;  137, 
259-  137.  386;  139,  315.  Subd.  1—52,  44;  52,  652; 
54    330;    56,  126;    57.  209;     57,  431;    61,  151;    68,  307; 

68*  355;     68,  390;    68,  468;   68,  493;    70,  128;    70,  416; 

7l'   73-     72,  590;     73,  575;     74,  63;     74,  527;     75,  193; 

75'  194;     75,  272;     75,  538;    77,  189;    77,  211;    79.  79; 

82'    59;     82.   210;     84.  93;     90.   65;     90.   253;     91,   281; 

92'  628;    92,  629;    95,  318;    96,  492;    97,  548;    98,  294; 

98*   296;     98.   299;     99,   595;     99,  659;     101,  156;     102. 

380-    106,  18;    107,  59;    108,  568;    109,  218;    110,  537; 

111    336;    114,  37;    115.  141;    115,  175;    116,  256;    116, 

475;    117,  308;    117,  359;    120,  28;    120,  161;    120,  434; 

121    589;    122,  106;    122,  508;    122.  509;    122.  645;    127. 

591;     128.  535;     129.  9;     129,  12;     129,  375;     129,  525; 

130,  334;     130,  335;     130,  337;    131,  7;    131,  439;     132. 

483;     13?^   592;    1S2,  598;     134,  28;     137,  385;    140,  93; 

140,   200;     143,  132;      145,    703;      145,    704;     147,    511. 

Subd.   2-61,   213;     76,   606;     76,   607;     130,  498;     132. 

596;   135,  10^ 


5  §  540,  Ml  TIME   OF   COMMENCING   ACl'IONS.  IS 

Mutual  account:    See  post,  sec.   344. 

Actions  for  escape:   See  infra,  sec.  340,  subd.  i, 

§  340.    Within  one  year. 

Within  one  year: 

1.  An  action  upon  a  statute  for  a  penalty  or  forfeiture, 
■when  the  action  is  given  to  an  individual,  or  to  an  indi- 
vidual and  the  state,  except  when  the  statute  imposing  it 
prescribes   a  different  limitation. 

2.  An  action  upon  a  statute,  or  upon  an  undertaking  in 
a  criminal  action,  for  a  forfeiture  or  penalty  to  the  people 
of    this    state. 

3.  An  action  for  libel,  slander,  assault,  battery,  false 
imprisonment,  seduction  or  for  injury  to  or  for  the  death 
of  one  caused  by  the  wrongful  act  or  neglect  of  another  or 
by  a  depositor  against  a  baak;  for  the  payment  of  a  forged 
or  raised  check. 

4.  An  action  against  a  sheriff  or  other  officer  for  the  es- 
cape of  a  prisoner  arrested  or  imprisoned  on   civil   process. 

5.  An  action  against  a  municipal  corporation  for  dam- 
ages or  injuries  to  property  caused  by  a  mob  or  riot.  En. 
March  11,  1872.     Am'd.  1873-4,  292;  1875-G,  89;  1905,  232. 

Cal.  Rep.  Cit.  99,  596;  127,  508;  130,  133;  140,  328. 
Subd.  1—71,  245;  130,  332;  132,  598.  Subd.  3—65, 
576;  92,  410;  94,  372;  94,  374. 

One  year  against  decedent's  representatives:  Post,  sec. 
353;  after  reversal  on  appeal:  Post,  sec.  355;  entry  upon 
real  property:  Ante,  sec.  320. 

Action  against  city  for  injury  from  riot:  See  Pol.  Code, 
sec.  4454. 

§  341.     Within  six  months. 

Within  six  months: 

An  action  against  an  officer,  or  officer  de  facto: 

1.  To  recover  any  goods,  wares,  merchandise,  or  other 
property,  seized  by  any  such  officer  in  his  official  capacity 
as  tax  collector,  or  to  recover  the  price  or  value  of  any 
goods,  wares,  merchandise,  or  other  personal  property  so 
seized,  or  for  damages  for  the  seizure,  detention,  sale  of, 
or  injury  to  any  goods,  wares,  merchandise,  or  other  per- 
sonal property  seized,  or  for  damages  done  to  any  person 
or  property  in  making  any  such  seizure. 

2.  To  recover  stock  sold  for  a  delinquent  assessment,  as 
provided  in  section  347  of  the  Civil  Code.  En.  March  11, 
1872.     Am'd.  1873-4,  292. 


123  TIME  OF   COMMKNCING   ACTIONS.  §§  342-344 

Cal.  Rep.  Cit.  117,  504;  130,  498.  SuM.  1—117  504* 
130,  499.     Subd.  2—133,  66. 

Stock  sold  for  assessment:  Civ.  Code,  sec.  347. 

Action  for  taxes  paid  under  protest:  See  Pol.  Code,  sec. 
SS19. 

Six  months — against  county:  Post,  sec.  M2;  Pol.  Code, 
sec.  4075;   by  decedent's  representatives,  sec.  353. 

Suits  for  penalties  for  violating  highway  laws:  See  Pol. 
Code,  sec.  2935. 

§  342.  Same.  Actions  on  claims  against  a  county, 
which  have  been  rejected  by  the  board  of  supervisors, 
must  be  commenced  within  six  months  after  the  first  re- 
jection thereof  by  such  board.    En.  March  11,  1872. 

Cal.  Rep.  Cit     75,  538;  116,  475;  116,  482. 

Action  for  riot:   Ante,  sec.  340,  subd.  5. 

Action  against  county  on  rejected  claim:  See  Pol.  Code, 
sec.  4075. 

§  343.     Actions  for  relief  not  hereinbefore  provided  for. 

An  action  for  relief  not  hereinbefore  provided  for,  must 
be  commenced  within  four  years  after  the  cause  of  action 
shall  have  accrued.    En.   March  11,  1872. 

Cal.  Rep.  Cit  52,  44;  54,  304;  58,  366;  58,  372;  59,  88 
59,  145;  60,  647;  62,  515;  66,  111;  68,  355;  69,  267 
71,  73;  71,  125;  71,  126;  72,  365;  72,  366;  73,  294 
73,  611;  74,  547;  77,  258;  77,  377;  81,  337;  82,  210 
84,  253;  90,  67;  90,  228;  91,  413;  91,  415;  91,  426 
91,  427;  91,  502;  92,  628;  92,  629;  97,  157;  97,  159 
99,  659;  100,  644;  106,  18;  112,  441;  113,  689;  116 
256;  117,  5;  117,  7;  118,  106;  120,  483;  121,  39 
124,  156;  124,  449;  124,  480;  127,  508;  123,  469 
129,  375;  129,  643;  132,  454;  137,  174;  137,  530;  139 
9;  141,  97;  142,  604;  144,  27;  147,  619;  147,  745 
147,  746. 
Bank  deposits,  no  liinitation:  Ante,  sec.  348. 

§  344.  Where  cause  of  action  accrues  on  mutual  ac- 
count. In  an  action  brought  to  recover  a  balance  due  upon 
a  mutual,  open,  and  current  account,  where  there  have 
been  reciprocal  demands  between  the  parties,  the  cause 
of  action  is  deemed  to  have  accrued  from  the  time  of  the 
last  item  proved  in  the  account  on  either  side.  En. 
March  11,  1872. 

Cal.  Rep.  Cit  74,  527;  109,  173;  121,  589;  125,  4U; 
141.  E37. 


t§  MS-SW  TTMU   OF   COMMENCING   ACTIONS.  1?« 

§  345.  Actions  by  the  people  subject  to  the  limitations 
of  this  chapter.  The  limitations  p.-escribed  in  this  chap- 
ter apply  to  actions  brought  in  the  name  of  the  state  or 
for  the  benefit  of  the  state,  in  the  same  manner  as  to  ac- 
tions by  private  parties,  except  that  actions  for  the  re- 
covery of  money  due  on  accounj,  of  the  presence  of  pa- 
tients at  the  state  hospitals  may  be  commenced  at  any 
time  within  three  years  after  the  accrual  of  the  same. 
En.  March  11,  1872.     Am'd.  1905,  487. 

0_1.  Rep.  Cit.  66,  563;  71,  78;  73,  575;  73,  611;  73,  612; 
77,   377. 

Action  by  people:   Ante,  sec.  315. 

§  346.  Action  to  redeem  mortgage.  An  action  to  re- 
deem a  mortgage  of  real  property  with  or  without  an  ac- 
count of  rents  and  profits,  may  be  brought  by  the  mort- 
gagor, or  those  claiming  under  him,  against  the  mort- 
gagee In  possession,  or  those  claiming  under  him,  unless 
he  or  they  have  continuously  maintained  an  adverse  pos- 
session of  the  mortgaged  premises  for  five  years  after 
breach  of  some  condition  of  the  mortgage.  En.  March  11, 
1872. 

Cal.  Rep.  Clt.  69,  267;  72,  811;  73,  294;  80,  353;  80, 
356;  88,  445;  95,  195;  95,  196;  95,  197;  95,  201; 
95,  203;     100,  453;    119,  312;     119,  814. 

"Action"  Includes  a  special  proceeding  of  a  cJvil  nature: 
Post,  sec.  363. 

§  347.  Same,  when  some  of  mortgagors  are  not  en- 
titled to  redeem.  If  there  is  more  than  one  such  mort- 
gagor, or  more  than  one  person  claiming  under  a  mort- 
gagor, some  of  whom  are  not  entitled  to  maintain  such 
an  action,  under  the  provisions  of  this  chapter,  any  one 
of  them,  who  is  entitled  to  maintain  such  an  action,  may 
redeem  therein  a  divided  or  undivided  part  of  the  mort- 
gaged premises,  according  as  his  Interest  may  appear,  and 
have  an  accounting  for  a  part  of  the  rents  and  profits, 
proportionate  to  his  interest  in  the  mortgaged  premises, 
on  payment  of  a  part  of  the  mortgage  money,  bearing 
the  same  proportion  to  the  whole  of  such  money  as  the 
value  of  his  divided  or  undivided  interest  in  the  premises 
bears  to  the  whole  of  such  premises.     En.  March  11,  1872. 

Cal.  Rep.  Clt.       69,  267. 

§  348.  No  limitations  where  money  deposited  In  bank. 
To  actions   brought  to   recover  money  or   other  property 


12i  TIMH   OF  COMMENCING  ACTIONS,  J  8  349-351 

deposited  with  any  bank,  banker,  trust  company,  or  sav- 
ings and  loan  society,  there  is  no  limitation.  En.  Stats. 
1873-4,   293. 

Cal.   Rep.  Cit     64,  122;     65,  72;     73,  611;    125,  412;    127, 

674. 

g  349.  Time  for  commencing  actions  yndwp  "  Jo-^all  Im- 
provement" act.  Any  action  to  contest  aa  assessment 
levied  by  the  legislative  body  of  any  municipality  under 
the  terms  of  the  "local  Improvement  act  of  1901,"  must 
be  commenced  within  thirty  days  after  the  entry  uipcn  the 
minutes  of  such  legislative  body  of  the  resolution  pro- 
vided for  in  section  eight  of  said  "local  improvement  act 
of   1901."    En.    Stats.    1900-01,   44. 


CHAPTER  IV. 

GBNERAl,  PROVISIONS  AS  TO   THB  TIME   OF  CX>MMENCINO  AC- 
TIONS. 

S?5C.  When  an  action  Is  commenced. 

i51.  Exception,   where  defendant  la  out  of  the  state. 

8  352.  Exceptions   aa   to   persons   under   disabilities. 

I  353.  Provision   where  person   entitled   dies  before   llmltaUon  expiret. 

5  354.  1.1   suits  by   aliens,   time  of  war   to  be   deducted. 
8  355.  Provision  where  Judgment  has  been   reversed. 

8  356.    Provision  where  action  is  stayed  by  Injunction. 

I  367.    Disability  must  exist  when   right  of  action  accrued. 

6  358.     When   two  or  more  disabilities  exist,   etc. 

S  359.    This  title  not  applicable  to  actions  against  directors,   etc.    Lami- 

tatlons  In   such   cases  prescribed. 
8  360.    Acknowledgment   or  new  promise  must  bo  In   writing. 
§  361.     Limitation   laws   of   other  states,    effect  of. 
§  362.     Existing  causes  of  action  not  affected. 
I  363.    "Action"    includes    a   special    proceeding. 


§  350.  When  an  action  is  commenced.  An  action  Is 
commenced,  within  the  meaning  of  this  UUe,  when  the 
complaint  is  filed.     En.  March  11,  1872. 

Cal.   Rep.   Cit.     58,   150;    136,   304. 

jl  351.  Exception,  where  defendant  Is  out  of  the  state. 
If  when  the  cause  of  action  accrues  against  a  person,  he 
Is' out  of  the  state,  the  action  may  be  commenced  within 
the  term  herein  limited,  after  his  return  to  the  state,  and 
If  after  the  cause  of  action  accrues,  he  departs  from  the 
state  the  time  of  his  absence  is  not  a  part  of  the  time 
liini-ed  for  the  commencement  of  the  action.  En.  Marcli 
11,  1872. 

Cal.  Rep.  Cit    66,  205;   95,  195;   101.  157;   183,  363. 


g§  352-356  TIME  OF  C01frM:ENCING  ACTIONS.  128 

§  352.     Exception  as  to  persons  under  disabilities.     If  a 

person  entitled  to  bring  an  action,  mentioned  in  cliapter 
three  of  this  title,  be  at  the  time  the  cause  of  action  ac- 
crued, either: 

1.  Within  the  age  of  majority;    or, 

2.  Insane;    or, 

8.  Imprisoned  on  a  criminal  charge,  or  In  execution  un- 
der the  sentence  of  a  criminal  court  for  a  term  less  than 
for    life;     or, 

4.  A  married  woman,  and  her  husband  be  a  necessary 
party  with   her  In  commencing  such  action: 

— The  time  of  such  disability  is  not  a  part  of  the  time 
limited  for  the  commencement  of  the  action.  En.  Maxch 
11,  1872. 

Cal.   Rep.   Clt.     65,   576. 

Disabilities  stopping  running  of  statute:  See  ante,  sec. 
828. 

§  353.  Provision  where  person  entitled  dies  before  limi- 
tation expires.  If  a  person  entitled  to  bring  an  action  die 
before  the  expiration  of  the  time  limited  for  the  com- 
mencement thereof,  and  the  cause  of  action  survive,  an 
action  may  be  commenced  by  his  representatives,  after 
the  expiration  of  that  time,  and  within  six  months  from 
his  death.  If  a  person  against  whom  an  action  may  be 
brought,  die  before  the  expiration  of  the  time  limited  for 
the  commencement  thereof,  and  the  cause  of  action  sur- 
vive, an  action  may  be  commenced  against  his  representa- 
tives after  the  expiration  of  that  time,  and  within  one  year 
after  the  Issuing  of  letters  testamentary  or  of  administra- 
tion.    En.   March   11,   1872. 

Cal.  Rep.  Cit.  50,  648;  53,  378;  67,  181;  85,  443;  94,  359; 
94,  860;  116,  356;  119,  66;  123,  888;  127,  191;  127,  195; 
136,    372;    142,    474;    145,    628;    146,    579. 

Substitution  of  parties:  See  post,  sec.  385. 

Survival  of  actions:  See  post,  sees.   385,  1582,  1584. 

"Action"  Includes  a  special  proceeding  of  a  civil  nature: 
See  post,  sec.  863. 

§  354.     In  suits  by  aliens,  time  of  war  to  be  deducted. 

When  a  person  is  an  alien  subject,  or  citizen  of  a 
country  at  war  with  the  United  States,  the  time  of  the 
continuance  of  the  war  is  not  part  of  the  period  limited 
for  the  commencement  of  the  action.    En.  March  11,  1872. 

§  355.  Provision  whiere  judgment  has  been .  reversed. 
If   an  action  is   commenced   within   the   time    prescribed 


127  TIME    OF    COMMENCING    ACTIONS.  $§  356-360 

therefor,  and  a  judgment  thereon  for  the  plaintiff  be  re- 
versed on  appeal,  the  plaintiff,  or  if  he  die  and  the  cause 
of  action  survive,  his  representatives,  may  commence  a 
new  action  within  one  year  after  the  reversal.  En.  Marcli 
11,  1872. 
Cal.   Rep.   Cit.     137,   530. 

§  356.     Provision  where  action  is  stayed  by  Injunction. 

When  the  commencement  of  an  action  is  stayed  by  injunc- 
tion or  statutory  prohibition,  the  time  of  the  continuance 
of  the  injunction  or  prohibition  is  not  part  of  the  time 
limited  for  the  commencement  of  the  action.  En.  March 
sec.    328. 

Cal.  Rep.  Cit.  54.  235;  61,  600;  63,  122;  66,  532;  89,  392; 
127,    192;    141,    100. 

§  357.  Disability  must  exist  when  right  of  action  ac- 
crued. No  person  can  avail  himself  of  a  disability,  unless 
It  existed  when  his  right  of  action  accrued.  En.  March 
11,   1872. 

Successive  disabilities:  See  infra,  sec  358,  and  ante, 
sec.  328. 

§  358.  When  two  or  more  disabilities  exist,  etc.  When 
two  or  more  disabilities  coexist  at  the  time  the  right  of 
action  accrues,  the  limitation  does  not  attach  until  they 
are  removed.     En.  March  11,  1872. 

Cal.  Rep.   Cit.     68,  352;    77,  372. 

§  359.  This  title  not  applicable  to  actions  against  direc- 
tors, etc  Limitations  in  such  cases  prescribed.  This  title 
does  not  affect  actions  against  directors  or  stockholders  of 
a  corporation,  to  recover  a  penalty  or  forfeiture  imposed, 
or  to  enforce  a  liability  created  by  law;  but  such  actions 
must  be  brought  within  three  years  after  the  discovery  by- 
the  aggrieved  party  of  the  facts  upon  which  the  penalty  or 
forfeiture  attached,  or  the  liability  was  created.  En. 
March  11,  1872. 

Cal.  Rep.  Cit  59,  546;  59,  547;  74,  171;  82,  653;  97,  97; 
99,  613;    99,  614;    99,  615;    x03,  596;    108,  5;    117,  163; 

124,  94;   125,  8;   125,  409;   125,  410;   125,  412;   125,  454; 

125,  455;  125,  488;  127,  167;  127,  259;  127,  260;  127. 
627;  127,  528;  127,  671;  142,  384;  143,  224;  145,  703; 
145,    704;    147,    558. 

Director's   personal    liability:  See   Civ.   Code,   sec.   309. 

§  360.  Acknowledgment  or  new  promise  must  be  in 
writing.     No  acknowledgment  or  promise  is  sufficient  evi- 


§§  361-363  TIME  OF  COMMENCING   ACTIONS.  IS 

dence  of  a  new  or  continuing  contract,  by  which  to  take 
the  case  out  of  the  operation  of  this  title,  unless  the  same 
is  contained  in  some  writing,  signed  by  the  party  to  be 
charged   thereby.     En.    March   11,   1872. 

Cal.  Rep.  Cit  51,  217;  56,  344;  56,  379;  56,  380;  66.  190; 
70,  414;  74.  67;  74,  69;  75.  275;  76,  101;  98,  298;  122. 
414;  122,  415;  122,  417;  122,  419;  127,  530;  127,  671; 
128,  476;  130,  251;  134,  19;  134.  20;  134,  21;  134,  29; 
137,  389;    138,  659;    143.  133. 

§  361.  Limitation  laws  of  other  states,  effect  of.  When 
a  cause  of  action  has  arisen  In  another  state,  or  In  a  for- 
eign country;  and  by  the  laws  thereof  an  action  there- 
on cannot  there  be  maintained  against  a  person  by  reason 
of  the  lapse  of  time,  an  action  thereon  shall  not  be  main- 
tained against  him  in  this  state,  except  in  favor  of  one 
who  has  been  a  citizen  of  this  state,  and  who  has  held  the 
cause  of  action  from  the  time  it  accrued.  En.  March  11, 
1872. 

Cal.  Rep.  Clt  72.  266;  79.  79;  95,  194;  95.  197;  95,  198; 
95,   200;    95,   206;    99,   515. 

Prac  Act,  sec.  532.     En.  April  29.  1851. 

§  362.  Existing  causes  of  action  not  affected.  This 
title  does  not  extend  to  actions  already  commenced,  nor 
to  cases  where  the  time  prescribed  in  any  existing  stat- 
ute, for  acquiring  a  right  or  barring  a  remedy  has  fully 
run.  but  the  laws  now  in  force  are  applicable  to  such  ac- 
tions and  cases,  and  are  repealed  subject  to  the  provi- 
sions of  this  section.    En.   March  11,  1872. 

Cal.   Rep.   Cit     95,  202. 

Repeal  of  limitation:  See  ante,  sees.  9,  18. 

§363.  "Action"  includes  a  special  proceeding.  The 
word  "action,"  as  used  in  this  title.  Is  to  be  construed, 
whenever  it  is  necessary  so  to  do,  as  including  a  special 
proceeding  of  a  civil  nature.     En.  March  11.  1872. 

Cal.  Rep.  Cit  55,  588;  95,  202;  99.  614;  117,  6;  118,  661; 
118,    662;    141,    98;    145,    47. 


129  PAKTIES    TO    CIVIL   ACTIONS.  S  367 

TITLE    III. 

OF  THB   PARTIT5S   TO   CIVIL.   ACTIONS. 

S  M7.    Action  to  be  In  name  of  party  In  interest. 

§  368.    Assignment  of  thing  In  action  not  to  prejudice  defense, 

§  369.  Executor,  trust**,  etc.,  may  sue  without  Joining  the  persons 
beneficially  Interested. 

§  370.    When  a  married  woman  Is  a  party— actions  by  and  against. 

§  371.    Wife  may  defeiod,   when. 

§  372.    Infant   to  appear  by   guardian. 

§  373.    Guardian,    how    appointed. 

§  374.    Unmarried   female  may  sue,    for  her  own   seduction. 

5  375.     Father,   etc,   may   sue,    for  seduction   of  daughter,    ete. 

§  378.    Father,   etc.,   may   sue,   for  Injury   or  death  of  child. 

5  377.  When  representatives  may  sue  for  death  of  one  caused  by  the 
wrongful   act  of  another. 

§  SIX.    Who  may  be  joined  as  plaintiffs. 

§  379.    Who  may  be  Joined   as  defendants. 

5  389.  Parties  defendant  In  an  action  to  determine  conflicting  clalma 
to    real    property. 

§  Kl.    Parties  holding  title  under  a  commo*   source,   when  may   join. 

§  S82.  Parties  In  interest,  when  to  be  joined.  When  one  or  more  may 
sue  or   defend   for  the  whole. 

S  883.  Plaintiff  may  cue  In  one  action  the  different  parties  to  commer- 
cial  paper   or   Insurance   policies. 

I  S84.  Tenants  In  common,  etc,  may  sever  In  bringing  or  defending 
actlona. 

(  386.  Action,  when  not  to  abate  by  death,  marriage,  or  other  disabil- 
ity.   Proceedings    In   such   case. 

§  388.     Another  person  may   be  substituted   for  the  defendant. 

S  387.    Intervention,   when   It  takes  place  and  how  made. 

§  388.    Associates  may  be  sued  by  name  of  assoclatloiu 

I  389.  Court,  wh«en  to  decide  controversy  or  to  order  other  parties  to 
be   brought   in. 

I  390.    Actions  against  fire  departments. 

5  367.     Action  to  b«  In  name  of  party  In  Interest.    Every 
action  must  be  prosecuted  in  the  name  of  the  real  party  In 
interest,  e.xcept  as  provided  in  section  three  hundred  and 
Bixty-nine  of  this  Code.    En.  March  U,  1872.    Am'd.  1880, 
63. 
CJaL  Rep.  Clt     55,  129;   57.  586;  61,  614;   66,  58;  666,  445; 
68,  368;    69,  145;   77,  543;   87,  247;   112,  82;   123,  186; 
138,  219. 
Prac  Act,   sec.   4.     En.   April   29,   1851.    Am'd,   1854,   50; 
1855,  303;   1864,  29. 
Cal.  Rep.  Clt     6,  248;  6,  457;  9,  328;   12,  98;  18,  618;   22, 
235;  22,  236;  22,  239;  25,  189;  25,  252;  26,  148;  32,  90; 
32,  118;   33,  127;   34,  148;   138,  219;   146,  210;  146,  579; 
147,  389. 
Assignees:   See  post,  sec.  368. 
Association,  how  may  be  sued:   See  infra,  sec.  388. 

Code   CivU   Proc— 9. 


18  363,  369  PAHTTES   TO   CTTlX.    ACTTIOiSra  HO 

Right  to  sne  on  contract  made  for  one's  benefit:  Sea 
Civ.  Code,  xc.  ir)59. 

Parties  plaintilf,  generally. — All  persons  Interested  ma^ 
be  joined:  Sees.  378,  382,  post.  If  any  refxise,  they  may  be 
made  defendants:   Post,  sec.  382. 

9  368.  Assignment  of  thing  In  action  not  to  prejudice 
defense.  In  the  case  of  an  assignment  of  a  thing  in  ac- 
tion, the  action  by  the  assignee  is  without  prejudice  to  any 
setoff  or  other  defense  existing  at  the  time  of,  or  before, 
notice  of  the  assignment;  but  this  section  does  not  apply 
to  a  negotiable  promissory  note  or  bill  of  exchange,  trans- 
ferred In  good  faith  and  upon  good  consideration,  before 
maturity.     En.  March  11,  1872. 

Cal.  Rep.  Cit  56,  129;  65,  438;  66,  42;  76.  636;  81,  327; 
101,  288;  101,  289;  107,  62;  107.  67;  113,  171;  123,  161; 
126.  Ill;   132,  584;   133,  47;   133,  685. 

Prac.  Act,  sec.  5.     En.  April  29.  185L 

CaL  Rep.  Clt  9,  50;  33.  528;  123,  161. 

Assignment  and  survival  of  causes  of  action:  See  post, 
sees.  1582  et  seq. 

See  the  subject  of  negotiable  instruments  and  the  rights 
of  parties  thereto  discussed  in  the  Civil  Code,  sees.  3086 
et  seq. 

Thing  in  action  defined:  Civ.  Code,  sec.  953. 

§  369.  Executor,  trustee,  etc.,  may  sue  without  joining 
the  persons  beneficially  interested.  An  executor  or  ad- 
ministrator, or  trustee  of  an  express  trust,  or  a  person 
expressly  authorized  by  stiitute,  may  sue  without  joining 
with  him  the  persons  for  whose  benefit  the  action  is 
prosecuted.  A  person  with  whom,  or  in  whose  name,  a 
contract  is  made  for  the  benefit  of  another,  is  a  trustee 
of  an  express  trust,  within  the  meaning  of  this  section. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.  57,  586;  57,  587;  66,  446;  68,  420;  71,  598; 
74,  375;  75,  127;  75,  250;  77,  542;  80,  31;  83,  486;  87. 
247;  89,  605;  91,  504;  98,  497;  100,  509;  110,  575;  114, 
388;   119,  576. 

Prac.  Act,  sec.  6.    En.  April  29,  185L     Am'd.  1854,  59. 

Cal.  Rep.  Cit  1,  174;  3,  321;  25,  29;  28,  543;  32,  117; 
34,  138;  85,  445;  142,  145;  146,  210;  147.  311;  147,  390. 

Executors  and  administrators,  action  by,  jointly  with 
heirs  or  devisees,  for  possession  of  real  estate  or  quieting 


131  PARTIES    TO   CIVTL   ACTIONS.  §§  370-57S 

title:    Sec.   1452.     Actions   by,   alone:    Sec.   1581-3.     To   set 
aside  fraudulent  deeds  made  by  deceased:  Sec.  1589. 

§  370.  When  a  married  woman  is  a  party — actions  by 
and  against  Wben  a  married  woman  is  a  party,  her  hus- 
band must  be  joined  with  her,  except: 

1.  When  the  action  concerns  her  separate  property,  or 
her  right  or  claim  to  the  homestead  property,  she  may  sue 
alone. 

2.  When  the  action  is  between  herself  and  her  husband, 
she  may  sue  or  be  sued  alone. 

3.  When  she  is  living  separate  and  apart  from  her  hus- 
band by  reason  of  his  desertion  of  her,  or  by  agreement  in 
writing  entered  into  between  them,  she  may  sue  or  be 
sued    alone.    En.    March    11,    1872.    Am'd.    1873-4,    293. 

Cal.  Rep.  Cit.  53,  460;  54,  178;  65,  631;  67,  391;  71,  425; 
96,  611;  110,  89;  122,  259;  126,  82;  137,  277;  138,  165, 
Subd.  1—67,  390;  87,  468;  105,  690;  105,  691;  110,  425; 
126,  481;  134,  421;  136,  302.  Subd.  3—77,  391;  105, 
690;     122,   255. 

Prac.  Act,  sec.  7.    En.  April  29,  1851.     Am'd.  1867-8,  550. 

Cal.  Rep.  Cit.  3,  87;  15.  311;  19,  129;  26,  443;  29,  83; 
31,  335;  32,  342;  36,  450;  36,  451;  36,  453;   42,  412. 

Contracts  of  married     women  generally:   See  Civ.  Code, 
sec.  158. 
Sole  traders:  Post,  sees.  1811  et  seq. 

§  371.     Wife  may  defend,  when.     If  a  husband  and  wife 

•  be  snei  together  the  wife  may  defend  for  her  own  right, 
and  if  the  husband  neglect  to  defend,  she  may  defend  for 
his  right  also.    En.  March  11,  1872. 
Prac.  Act,  sec  8.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  5,  388. 

§  372.  Infant  to  appear  by  guardian.  When  an  Infant, 
or  an  insane  or  incompetent  person  is  a  party,  he  must 
appear  either  by  his  general  guardian  or  by  a  guardian  ad 
litem  appointed  by  the  court,  in  which  the  action  is  pend- 
ing in  each  case.  A  guardian  ad  litem  may  be  appointed 
in  any  case,  when  it  is  deemed  by  the  court  in  which  the 
action  or  proceeding  is  prosecuted,  or  by  a  judge  thereof, 
expedient  to  represent  the  infant,  insane  or  incompetent 
person   in   the   action   or   proceeding,   notwithstanding  he 


§§  373.  374  PARTIES   TO   CTVTL    ACTIOire.  13J 

may  have  a  general  guardian  and  may  have  app«»areri  by 
Mm.     En.  March  11,   1872.     Am'd.  1873-4,   294;    1880,  63. 

Cal.  Rep.  Cit  56,  322;  63,  89;  64,  238;  S-l,  593;  66,  361; 
74,  55;  75,  599;  87,  532;  89,  637;  94,  56;  103,  390; 
111,  271;   120,  697;   133,  418. 

Prac.  Act,  sec.  9.    En.  April  29,  1851. 

Cal.  Rep.  Cit.    19,  632;   64,  593. 

Appointment  of  guardian  ad  litem:  See  next  section. 

Guardian  and  ward,  generally:  See  post,  sees.  1747  et 
seq.;   and  Civ.  Code,  sees.  236  et  seq. 

Insane  or  incompetent  person:  Civ.  Code,  sees.  36,  38-42; 
guardian  or:  Post,  sees.  1763-1766. 

Minors  and  persons  of  unsound  mind,  their  rights  and 
liabilities:  Civ.  Code,  sees.  33  et  seq. 

§  373.  Guardian,  how  appointed.  When  a  guardian  ad 
litem  is  appointed  by  the  court,  he  must  be  appointed  as 
follows: 

1.  When  the  infant  is  plaintiff,  upon  the  application  of 
the  infant,  if  he  be  of  the  age  of  fourteen  years,  or  If 
under  that  age,  upon  the  application  of  a  relative  or  friend 
of  the  infant 

2.  When  the  infant  is  defendant,  upon  the  application  of 
the  infant,  if  he  be  of  the  age  of  fourteen  years,  and  apply 
within  ten  days  after  the  service  of  the  summons,  or  If 
under  that  age,  or  if  he  neglect  so  to  apply,  then  upon  the 
application  of  a  relative  or  friend  of  the  infant,  or  of  any 
other  party  to  the  action. 

3.  When  an  insane  or  incompetent  person  is  a  party  to 
an  action  or  proceeding,  upon  the  application  of  a  relative 
or  friend  of  such  insane  or  incompetent  person,  or  of  any 
other  party  to  the  action  of  proceeding.  EJn.  March  11, 
1872.     Am'd.  1880,  63. 

CaL  Rep.  Cit  56,  322;  63,  562;  64,  594;  64,  597;  66,  53; 
66,  360;  74,  55;  119,  576;  133,  418. 

Prac.  Act,  sec.  10.    En.  April  29,  1851. 

Cal.  Rep.  Cit  19,  632;  64,  594. 

§  374.  Unmarried  female  may  sue,  for  her  own  seduc- 
tion. An  unmarried  female  may  prosecute,  as  plalntiflf, 
an  action  for  her  own  seduction,  and  may  recover  therein 


IB  PARTIES   TO   CIVIL  ACTIONS.  §§  375^377 

Buch  damages,  pecuniary  or  exemplary,  as  are  assessed  in 
her  favor.     En.  March  11,  1872. 

Cal.   Rep.  Cit.    98,  59. 

Exemplary   damages:  See  Civ.   Code,   sec.   3294. 
Damages  for  seduction:  See  Civ.  Code,  sec.  3339, 

i  375.  Father,  etc.,  may  sue,  for  seduction  of  daughter, 
etc.  A  father,  or  in  case  of  his  death  or  desertion  of  his 
family,  the  mother  may  prosecute  as  plaintiff  for  the 
seduction  of  the  daughter,  and  the  guardian  for  the  se- 
duction of  the  ward,  though  the  daughter  or  ward  be  not 
living  with  or  in  the  service  of  the  plaintiff  at  the  time 
of  the  seduction  or  afterward,  and  there  be  no  loss  of  ser- 
vice.   En.   March   11,   1872. 

Guardian  ad  litem:  Ante,  sec.  372;  appointment  of: 
Ante,  sec.   373. 

§  376.     Father,  etc.,  may  sue,  for  Injury  or  death  of  child. 

A  father,  or  in  case  of  his  death  or  desertion  of  his  family, 
the  mother,  may  maintain  an  action  for  the  injury  or 
death  of  a  minor  child,  and  a  guardian  for  the  injury  or 
death  of  his  ward,  when  such  injury  or  death  is  caused  by 
the  wrongful  act  or  neglect  of  another.  Such  action  may 
be  maintained  against  the  person  causing  the  injury  or 
death,  or  if  such  person  be  employed,  by  another  person 
who  is  responsible  for  his  conduct,  also  against  sucli 
other  person.    En.   March  11,  1872.    Am'd.   1873-4,   294. 

Cal.  Rep.  Cit.     50,  613;  56,  389;   56,  393;   56,  394;   62,  336; 
76,  241;    95,  520;    95,   521;    115,  390;    139,  622. 

Prac.  Act,  sec.  11.    En.  April  29,  1851. 

Cal.  Rep.  Cit.     19,  632;   25,  435;   32,  117;   32,  119;   44,  48. 

Guardian  and  ward:  Post,  sees.  1768-1776,  and  Civ.  Code, 
Bees.    236-258. 

§  377.  When  representatives  may  sue  for  death  of  one 
caused  by  the  wrongful  act  of  another.  When  the  death  of 
a  person,  not  being  a  minor,  is  caused  by  the  wrongful  act 
or  neglect  of  another,  his  heirs  or  personal  representatives 
may  maintain  an  action  for  damages  against  tte  person 
causing  the  death,  or  if  such  person  be  employed  by  an- 
othOT  person  who  is  responsible  for  his  conduct  then  also 


§§  378,  379  PARTIES    TO    CIVIL    ACTIONS.  1S4 

against  such  other  person.  In  every  action  under  this 
and  the  preceding  section,  such  damages  may  be  given 
as  under  all  the  circumstances  of  the  case  may  be  just. 
En.  March  11,  1872.     Am'd.  1873-4,  294. 

Cal.  Rep.  Cit.  50,  613;  56,  389;  56,  393;  57,  26;  57,  37; 
57,  38;  59,  300;  59,  301;  60,  609;  62,  338;  63,  484; 
76,  241;  83,  19;  84,  521;  84,  522;  86,  143;  95,  521; 
110,  283;  110,  285;  110,  289;  115,  391;  124,  129;  124, 
130;  127,  439;  137,  399;  139,  4S3;  139,  484;  139,  487; 
40,    512. 

§  378.  Who  may  be.  joined  as  plaintiffs.  All  persons 
having  an  interest  in  the  subject  of  the  action  and  in  ob- 
taining the  relief  demanded,  may  be  joined  as  plaintiffs, 
except  as  othervrise  provided  in  this  title.  En.  March  11, 
1872. 

Cal.   Rep.   Cit.     68,  420;    115,  583;    136,   639;    137,   673. 

Prac.  Act,  sec.  12.     En.  April  29,  1851. 

Cal.  Rep.   Cit    8,   516. 

Cotenants:  Post,  sec.  381. 

Special  partners:  Civ.  Code,  sec.  2492. 

Other   parties,    bringing    in:  Post,    sec.    389. 

Misjoinder  and   nonjoinder   of  plaintiffs:  Post,   sec.   430. 

§  379.  Who  may  be  joined  as  defendants.  Any  person 
may  be  made  a  defendant  who  has  or  claims  an  interest  in 
the  controversy  adverse  to  the  plaintiff,  or  who  is  a  neces- 
sary party  to  a  complete  determination  or  settlement  of 
the  question  involved  therein.  And  in  an  action  to  deter- 
mine the  title  or  right  of  possession  to  real  property  which, 
at  the  time  of  the  commencement  of  the  action,  is  in  the 
possession  of  a  tenant,  the  landlord  may  be  joined  as  a 
party  defendant.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  63,  119;  63,  308;  67,  663;  69,  574;  77,  641; 
79,  120;   84,  5;   116,  90;   123,  661;   136,  639;   138,  90. 

Prac.  Act,  sec.  13.    En.  April  29,  1851. 

Cal.   Rep.   Cit     1,  174;    9,  270;    22,  205. 

Joining  landlord:  Ante,  sec.  379;   Civ.  Code,  sec.  1949. 
Parties  to  foreclosure:  Post,   sec.   726. 
Corporation  stockholders:  Const.  Cal.,  art.  12,  sees    3    4* 
Civ.   Code,   sec.   322.  '     '     ' 

Associates,  suing  by  common  name:  Post,  sec.  388. 
Quieting  title,  suits:  See  post,  sec.  738. 


13S  PARTIES  TO   CIVIL.  ACTIONS.  5§  380-382 

,     Executors,  unqualified,   need  not  be  joined:  Sec.   1587. 

Fresh  parties,  bringing  in:  Post,  sec.  389. 

Service  on  one  defendant  out  of  several,  effect  of:  Post, 
sec.  414. 

State,  suits  against — Soiits  may  be  brought  against  the 
state  in  such  manner  and  in  such  courts  as  shall  be  di- 
rected by  law:   Const.  Cal.,  art.  20,  sec.  6. 

Actions  against  state,  statutes  relating  to:  See  post, 
Appendix,  State. 

§  380.  Parties  defendant  In  an  action  to  determine  con- 
flicting claims  to  real  property.  In  an  action  brought  by  a 
person  out  of  possession  of  real  property,  to  determine  an 
adverse  claim  of  an  interest  or  estate  therein,  the  person 
making  such  adverse  claim  and  persons  in  possession  may 
be  joined  as  defendants,  and  if  the  judgment  be  for  the 
plaintiff,  he  may  have  a  writ  for  the  possession  of  the 
premises,  as  against  the  defendants  in  the  action,  against 
whom  the  judgment  has  passed.  En.  March  11,  1872. 
Am'd.    1873-4,   295. 

Cal.  Rep.  Cit.    66,  269;   80,  465;   83,  172;   90,  343;   94,  466; 
118,  36. 

Actions  to  quiet  title:  See  post,  sec.  738. 

"Writ  of  possession:   See  post,  sec.   682. 

Presh  parties,  bringing  In:  See  post,  sec  389. 

Nonjoinder,  misjoinder  of  parties:   See  Sec.  430. 

§  381.  Parties  holding  title  under  a  common  source, 
when  may  join.  Any  two  or  more  persons  claiming  any 
estate  or  interest  in  lands  under  a  common  source  of  title, 
whether  holding  as  tenants  in  common,  joint  tenants,  co- 
parceners, or  in  severalty,  may  unite  in  an  action  against 
any  person  claiming  an  adverse  estate  or  interest  therein, 
for  the  purpose  of  determining  such  adverse  claim,  or  if 
[of]  establishing  such  common  source  of  title,  or  of  de- 
claring the  same  to  be  held  in  trust,  or  of  removing  a 
cloud  upon  the  same.  En,  March  11,  1872.  Am'd.  1873-4, 
295. 

CaL  Rep.  Cit     58,  182;    83,  351;    129,  61;    137,  306. 

Cotenajits  may  sever:  See  sec.  384,  infra. 

Ejectment:   See  sec.   738,  post,  and  sec.  379,  supra. 

Quieting  title:   See  post,  sec.  738. 

Joint  tenants:  See  post,  sec.  384. 

§  382.  Parties  in  interest  when  to  be  joined.  When  one 
or   more   may   sue   or   defend   the   whole.     Of  the  parties 


§  S83  PAETIES  TO  CTVXL  ACTIONS.  VSf 

to  the  action,  those  who  are  united  in  interest  .m>.ist  be 
joined  as  plaintiffs  or  defendants;  but  if  the  consent  of 
any  one  who  should  have  been  joined  as  plaintiff  cannot 
be  obtained,  he  may  be  made  a  defendant,  the  reason 
thereof  being  stated  in  the  complaint;  and  v/hen  the 
question  is  one  of  a  common  or  general  interest,  of  many 
persons,  or  when  the  parties  are  numerous,  and  it  is  im- 
practicable to  bring  them  all  before  the  court,  one  or  more 
may  sue  or  defend  for  the  benefit  of  all.  En.  March  11, 
1872. 

Cal.  Rep.  Cit  58,  183;  58,  184;  60,  532;  69,  621;  74,  442; 
77,  248;  77,  249;  79,  372;  94,  581;  95,  256;  104,  7;  104, 
8;  104,  10;  110,  460;  129,  243;  136,  614;  136,  635;  136, 
639;   144,  29.     Subd.  2—84,  81. 

Prac.  Act,  sec  14.     En.  April  29,  1851, 

Cal.  Rep.  Clt.  1,  174;  3,  87;  7,  334;  8,  516;  18,  322;  20. 
218. 

Joinder,  misjoinder,  nonjoinder:  Post,  sec  430. 

Executors,  etc,  not  qualified  need  not  join:  Post,  sec. 
1587. 

§  383.  Plaintiff  may  sue  In  one  action  the  different  par- 
ties to  commercial  paper  or  Insurance  policies.  Persons 
severally  liable  upon  the  same  obligation  or  instrument, 
Including  the  parties  to  bills  of  exchange  and  promissory 
notes,  and  sureties  on  the  same  or  separate  instruments, 
may  all  or  any  of  them  be  included  in  the  same  action,  at 
the  option  of  the  plaintiff;  and  all  or  any  of  them  join  as 
plaintiffs  in  the  same  action,  concerning  or  affecting  the 
obligation  or  instrument  upon  which  they  are  severally 
liable.  Where  the  same  person  is  insured  by  two  or  more 
insurers  separately  in  respect  to  the  same  subject  and  in- 
terest, such  person,  or  the  payee  under  the  policies,  or  the 
assignee  of  the  cause  of  action,  or  other  successor  in  inter- 
est of  such  assured  or  payee,  may  join  all  or  any  of  such 
Insurers  in  a  single  action  for  the  recovery  of  a  loss  under 
the  several  policies,  and  in  case  of  judgment  a  several 
judgment  must  be  rendered  against  each  of  ssuch  insurers 
according  as  his  liability  shall  appear.  En.  March  11,  1872. 
Am'd.  1897,  19;    1903,  203. 

Cal.  Rep.  Cit.  48,  236;  58,  100;  65,  387;  73,  270;  75,  634; 
81,  653;  93,  58;  94,  93;  101,  420;  118,  420;  120,  690; 
123,   440;    125,   686;    135,   648;    136,   302. 

Prac.  Act,  sec.  15.     En.  April  29,  1851. 

Cal.  Rep.  Cit     1,  176;   6,  183;    13,  86;    24,  382;   25,  526. 


m  PARTIES   TO    CIVIL   ACTION'S.  55  384,  385 

Judgment  for  or  against  one  or  more  of  several  parties: 
See  post,  sees.  414,  578,  579. 

§  384.  Tenants  in  common,  etc.,  may  sever  in  bringing 
or  defending  actions.  All  persons  holding  as  tenants  in 
common,  joint  tenants  or  coparceners,  or  any  number  less 
than  all,  may  jointly  or  severally  commence  or  defend  any 
civil  action  or  proceeding  for  the  enforcement  or  protec- 
tion of  the  rights  of  such  party.    En.  March  11,  1872, 

Cal.  Rep.  Cit.  61,  262;  80,  630;  91.  598;  110,  425;  136, 
635;     137,  526;     139,  562. 

Co-claimants,  united  as  plaintiffs:  Sec.  381. 

§  385.  Action,  when  not  to  abate  by  death,  marriage, 
or  other  disability.  Proceedings  in  such  case.  An  action 
or  proceeding  does  not  abate  by  the  death  or  any  dissi- 
bllity  of  a  party,  or  by  the  transfer  of  any  Interest  there- 
in, if  the  cause  of  action  survive  or  continue.  In  case  of 
the  death  or  any  disability  of  a  party,  the  court,  on  mo- 
tion, may  allow  the  action  or  proceeding  to  be  continued 
by  or  against  his  representative  or  successor  In  Interest. 
In  case  of  any  other  transfer  of  Interest,  the  action  or 
proceeding  may  be  continued  in  the  name  of  the  original 
party,  or  the  court  may  allow  the  person  to  whom  the 
transfer  Is  made  to  be  substituted  in  the  action  or  pro- 
ceeding.    En.    March   11,   1872.     Am'd.   1873-4,   295. 

Cal.  Rep.  Cit.  46,  576;  50,  659;  64,  203;  54,  887;  56p  34; 
64,  82;  64,  430;  64,  476;  64,  596;  65,  388;  <jfe,  i^t 
66,  445;  68,  420;  72,  266;  76,  409;  77,  648;  7&,  8fc4S 
80,  264;  87,  27;  93,  390;  93,  656;  98,  125;  99,  510| 
111,  82;  112,  643;  116,  278;  117,  581;  128,  253;  128, 
254;  124,  142;  124,  143;  124,  145;  124,  807;  IDS,  26&; 
132,  454;  132,  466;  133.  25«>-  185,  224;  138,  587; 
188,  657;     139,  420;     140,  179;     142,  148;    146,  654. 

Prac.   Act,  sec.   16.     En.   April  29,  1851. 

Cal.  Eep.  Cit.  5,  282;  29,  372;  29,  377;  30,  475;  30,  476; 
31,   336;    32,   119;   49,   208;    50,   659;    64,   596. 

If  a  partj  die,  judgment  against  his  representative  must 
be  that  he  pay  in  due  course  of  administration:  Post,  sec. 
1504. 

Necessity  for  claiming  against  estate  of  deceased:  Post, 
sees.   1493,   1502. 

Death  after  verdict  or  decision  and  before  judgment: 
See   post,   sec.   669. 

Survival    of   actions:    See    post,    sees.    1582    et   seq. 


§§  386,  387  PARTIES   TO   CIVIL  ACTIONS.  1% 

§  386.  Another  person  may  be  substituted  for  the  dt*- 
fendant.  A  defendant  against  whom  an  action  Is  pending 
upon  a  contract,  or  for  specific  pei-sonal  property,  may,  at 
any  time  before  answer,  upon  alfidavit  that  a  person  not 
a  party  to  the  action  makes  against  him,  and  without  any 
collusion  with  him,  a  demand  upon  such  contract,  or  for 
such  property,  upon  notice  to  such  person  and  the  adverse 
party,  apply  to  the  court  for  an  order  to  substitute  such 
person  In  his  place,  and  discharge  him  from  liability  to 
either  party,  on  his  depositing  In  court  the  amount 
claimed  on  the  contract,  or  delivering  the  property,  or  its 
value,  to  such  person  as  the  court  may  direct;  and  the 
court  may.  In  Its  discretion,  make  the  order.  And  when- 
ever conflicting  claims  are  or  may  be  made  upon  a  person 
for  or  relating  to  personal  property,  or  the  performance 
of  an  obligation,  or  any  portion  thereof,  such  person  may 
bring  an  action  against  the  conflicting  claimants  to  com- 
pel them  to  Interplead  and  litigate  their  several  claims 
among  themselves.  The  order  of  substitution  may  be 
made,  and  the  action  of  Interpleader  may  be  maintained, 
and  the  applicant  or  plaintiff  be  discharged  from  liability 
to  all  or  any  of  the  conflicting  claimants,  although  their 
titles  or  claim  have  not  a  common  origin,  or  are  not 
Identical,  but  are  adverse  to  and  Independent  of  one  an- 
other.    En.  March  11,  1872.     Am'd.  1881,  19. 

Cal.  Rep.  CIt.     59,  273;    65,  160;    66,  42;    69,  153;    69,  155; 

72,  234;    72,  516;    73,  303;    74,  257;    75,  543;    111,  376; 

111,  393;    123,  110;    127,  518;    131,  325;    133,  643;  137, 
70;   141,  102;   142.  113. 

§  387.  Intervention,  when  It  takes  place  and  how  made. 
Any  person  may,  before  the  trial.  Intervene  in  an  action 
or  proceeding,  who  has  an  interest  in  the  matter  in  liti- 
gation, in  the  success  of  either  of  the  parties,  or  an  Inter- 
est against  both.  An  Intervention  takes  place  when  a 
third  person  Is  permitted  to  become  a  party  to  an  action 
or  proceeding  between  other  persons,  either  by  joining 
the  plaintiff  in  claiming  what  Is  sought  by  the  complaint, 
or  by  uniting  with  the  defendant  In  resisting  the  claims 
of  the  plaintiff,  or  by  demanding  anything  adversely  to 
both  the  plaintiff  and  the  defendant,  and  Is  made  by  com- 
plaint, setting  forth  the  grounds  upon  which  the  inter- 
vention rests,  filed  by  leave  of  the  court  and  served  upon 
the  parties  to  the  action  or  proceeding  who  have  not  ap- 
peared, and  upon  the  attorneys  of  the  parties  who  have 


129  PARTIES   TO   CIVIL   ACTIONS.  S5  388.  389 

appeared,  who  may  answer  or  demur  to  it  as  If  it  were  an 
original  complaint.  En.  March  11,  1S72.  >m'd.  1873-4. 
296. 

Cal.  Rep.  Cit.     52,  511;    53,  744;    57,  77;    58,  355;    60,  125; 

61,   556;     63,   5;     63,   562;     64,   47G;     66.   73;     93,   319; 

97,  455;     101,  331;     101,  332;     104,  6;     104,  7;     104,  8; 

108,  .222;    111,  392;    112,  651;    114,  373;    121,  261;    123, 

255;     126,  318;     128,  635;    130,  44;    131,  92;    132,  290; 

137,  477;     140,  377;     144,  728. 
Eminent  domain — intervention  in:    Post,  sec.  1246. 

§  388.  Associates  may  be  sued  by  name  of  association. 
When  two  or  more  persons,  associated  in  any  business, 
transact  such  business  under  a  common  name,  whether  it 
comprise  the  names  of  such  persons  or  not,  the  associates 
may  be  sued  by  such  common  name,  the  summons  in  such 
cases  being  serre'd  on  one  or  more  of  the  associates;  and 
the  Judgment  in  the  action  shall  bind  the  joint  property  of 
all  the  associates.  In  the  same  manner  as  if  all  had  been 
named  defendants,  and  had  been  sued  upon  their  joint 
liability.    En.   March  11,  1872. 

Cal.  Rep.  Clt.  55,  3G7;  67,  146;  67,  147;  67,  569;  69, 
458;  69,  621;  73,  391;  73,  393;  94,  299;  94,  300;  94, 
802;    115,  508;     123,  647;     136,  302;     139,  177. 

Business  associates — common  name:   Sec.  414. 

Partners  under  fictitious  name  must  file  certificate:  See 
Civ.  Code,  sees.  2466  ©t  seq. 

8  389.  Court,  when  to  decide  controversy  or  to  order 
otiier  parties  to  be  brouglit  in.  The  court  may  determine 
any  controversy  between  parties  before  it,  when  it  can  be 
done  without  prejudice  to  the  rights  of  others,  or  by 
saving  their  rights;  but  when  a  complete  determination  of 
the  controversy  cannot  be  had  without  the  presence  of 
other  parties,  the  court  must  then  order  them  to  be 
brought  in,  and  to  that  end  may  order  amended  and  sup- 
plemental pleadings,  or  a  cross-complaint  to  be  filed,  and 
summions  thereon  to  be  issued  and  served.  And  when,  in 
an  action  for  the  recovery  of  real  or  personal  property,  a 
person,  not  a  party  to  the  action,  but  having  an  interest 
in  the  subject  thereof,  makes  application  to  the  court  to 
be  made  a  party,  it  may  order  him  to  be  brought  in,  by 
th'e  proper  amendment.  En.  March  11,  1872.  Am'd.  1897,. 
9. 
Cal.    Rep.    Cit.     64,    476;    65,    455;    69,    621;    74,    443;    76, 

542;    95,  25G;    112,  G51;    115,  420;    116,  447;    116,  453; 

117,    550;     126,    318;     130,    521;     136,    536;     136,    639; 

187,  658;     142,  70;    144,  729;    145,  570;     146,  498. 


§§  390,  3»2  PLACE   OP   TRIAL.  14« 

Prac.  Act,  sec.  17.    En.  April  29,  1851. 

Cal.  Rep.  Cit     1,  177;    5,  282;    9,  97;     22,  205;    27,  333; 
38,  522;     44,  39G. 

Joining   landlord:    Ante,    sec.   379;    Civ.   Code,    sec.    1949. 
Party,  adding  and  amending  name  of:   Ante,  sec.  473. 

§  390.  Actions  against  fire  departments.  Causes  of 
action  upon  contract,  or  for  damages  arising  out  of,  or 
pertaining  or  incident  to,  the  official  administration  of  the 
fire  departments  created  by  acts  of  the  legislature  oi  ihis 
state,  shall  be  brought  directly  by  and  against  the  muni- 
cipality by  its  corporate  name  wherein  the  damage  wag 
sustained.  And  the  said  boards  of  fire  commissionfcro 
shall  not  be  sned  as  such,  except  to  compel  or  restrain  tha 
performance  of  acts  proper  to  be  compelled  oi  restrained 
under  and  not  within  the  discretion  intended  to  be  con- 
ferred by  this  act.    En.  Stats.  1885,  92. 


TITLE    IV. 

OP  THH  PLACE   OP  TRIAL  OF   CIVIL   ACTIONS. 

{  J9J.  Certain  actions  to  be  tried  where  the  Bubjcsct  or  some  part  there- 
of   IS    situated. 

§  293.    Other  actions,   where  the  cause  or  some  part  thereof  arose. 

I  394.    Place  of  trial  of  actions  against  counties. 

§  395.     Other  actions  according  to  the  residence   of  the   parties. 

§  396.  Action  may  be  tried  in  any  county,  unless  the  defendant  de- 
mand a  trial   in  the  proper  county. 

§  897.    Place  of  trial  may  be  changed  In  certain  cases. 

§  398.    When  judge  is  disqualified,   cause  to  be   transferred. 

S  339.    Persons    to    bo    trar.snilttedL     Costs,    etc.     Jurisdlctloa,    etc. 

I  400.    Proceedings  after  judgment  In  certain  cases  transferred. 

Gen.  Cit.  to  Chap. — Cal.  Rep.  Cit.  54,  188. 

§  392.  Certain  actions  to  be  tried  where  the  subject  or 
some  part  thereof  is  situated.  Actions  for  the  following 
causes  must  be  tried  in  the  county  in  which  the  subject 
of  the  action,  or  some  part  thereof  is  situated,  subject  to 
the  power  of  the  court  to  change  the  place  of  trial,  as 
provided  in  this  code: 

1.  For  the  recovery  of  real  property,  or  of  an  estate  or 


141  PLACE    OF    TRIAL.  §   393 

interest   therein,   or   for   the   determination,  in   any  form   of 
such  right   or  interest,   and   for  injuries  to  real  property. 

2.  For  partition  of  real  property. 

3.  For  the  foreclosure  of  all  liens  and  mortgages  on 
real  property.  Where  the  real  property  is  situated  partly 
in  one  county  and  partly  in  another,  the  plaintiff  may 
select  either  of  the  counties,  and  the  county  so  selected 
is  the  proper  county  for  the  trial  of  such  action;  provided, 
that  in  the  case  mentioned  in  this  subdivision,  if  the  plain- 
tiff prays  in  his  complaint  for  an  injunction  pending  the 
action,  or  applies  pending  the  action,  for  an  injunction,  the 
proper  county  for  the  trial  shall  be  the  county  in  which 
the  defendant  resides  or  a  majority  of  the  defendants 
reside  at  the  commencement  of  the  action.  En.  March  11, 
1872.     Am'd.   1875-6,  90;   1889,  352. 

CaL  Rep.  Cit  51,  567;  54,  187;  56,  175;  60.  410;  61,  TO; 
63,  500;  73,  184;  86,  97;  86,  105;  86,  200;  88,  575; 
88,  576;  88.  577;  101,  461;  102,  335;  105,  141;  106,  58; 
108,  222;  113,  610;  115,  250;  129,  278;  133,  59;  133,  60; 
136,  636;  138,  70;  138,  581;  140,  135;  140,  472;  140, 
473;  144,  74;  147,  474.  Subd.  1—66,  344;  77,  131;  79. 
606;  80.  309;  83,  184;  100,  16;  102,  335;  129,  278;  134, 
B87;   144,  773.    Subd.  3—125,  314. 

Prac.  Act,  sec.  18.    En.  April  29,  1851.    Am'd.  1861,  494. 

CaL  Rep.  Cit  15,  221;  16,  433;  26,  187. 

Riot,  actions  for  damans  caused  by,  must  be  tried  in 
the  county  in  whlcli  the  property  injured  la  situated:  PoL 
Code,  sec  4453. 

§  39&.  Other  actions,  where  the  cause  or  some  part 
thereof  arose.  Actions  for  the  following  causes  must  be 
tried  in  the  county  where  the  cause,  or  some  part  thereof, 
arose,  subject  to  the  like  power  of  the  court  to  change  the 
place  of  trial: 

1.  For  the  recovery  of  a  penalty  or  forfeiture  imposed 
by  statute;  except  tliat,  when  it  is  imposed  for  an  offense 
committed  on  a  lake,  river,  or  other  stream  of  water, 
situated  in  two  cr  more  counties,  the  action  may  be 
brought  in  any  county  bordering  on  such  lake,  river,  or 
stream,  and  opposite  to  the  place  where  the  offense  was 
committed ; 

2.  Against  a  public  officer,  or  person  especially  appointed 
to  execute  his  duties,  for  an  act  done  by  him  in  virtue  of 
his  office;  or  against  a  person  who,  by  his  command  or  in 


§§  3'J4,  395  PUACE   OF  TRIAL.  M 

his  aid,  does  anything  touching  the  duties  of  such  ouicer. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.     61,  78;    61,  79;   63,  500;   79,  31;   105,  141; 
113,  610;  115,  250;  115,  302;   138,  581. 

Prac.  Act.  sec.  19.     En.  April  29,  1851. 
Cal.  Rep.  Cit.  9,  420;   10,  19;   15,  221. 

5  394.     Place    of   trial    of   actions   against   countiea.     An 

action  against  a  county  or  city  and  county  may  be  com- 
menced and  tried  in  such  county  or  city  and  county 
unless  such  action  is  brought  by  a  county  or  city  and 
county,  in  which  case  it  may  be  commenced  and  tried  in 
any  county  or  city  and  county  not  a  party  thereto;  pro- 
vided further,  that  whenever  an  action  is  brought  by  a 
county  or  city  against  citizens  of  another  county,  or  a 
corporation  doing  businesss  in  the  latter,  the  action  must 
be,  on  the  motion  of  the  defendant,  transferred  for  trial 
to  a  county  other  than  the  plaintiff,  if  the  plainliff  be  a 
county,  and  other  than  that  in  which  the  plaintiff  is  sit- 
uated, if  the  plaintiff  be  a  city.  En.  March  11, 1872.  Am'd. 
1881,  23;  1891,  56. 
Cal.  Rep.  Cit.  61,  78;  102,  49;  115,  250;  136,  136;  136, 
137;    138,  580;   138,  581;   138,  582. 

Actions  against  cities  for  injuries  from  mobs:  See  Pol. 
Code,  sec.  4453. 

§  395.  Other  actions  according  to  the  residence  of  the 
parties.  In  all  other  cases,  the  action  must  be  tried  in 
the  county  in  which  the  defendants,  or  some  of  them  re- 
side at  the  commencement  of  the  action;  or,  if  none  of  the 
defendants  reside  in  the  state,  or,  if  residing  in  this  state, 
and  the  county  in  which  they  reside  is  unknown  to  the 
plaintiff,  the  same  may  be  tried  in  any  county  which  the 
plaintiff  may  designate  in  his  complaint;  and  if  the  defend- 
ant is  about  to  depart  from  the  state,  such  action  may  be 
tried  in  any  county  where  either  of  the  parties  reside 
or  service  is  had;  subject,  however,  to  the  power  of  the 
court  to  change  the  place  of  trial,  as  provided  in  this 
code.    En.  March  11,  1872. 

Cal.  Rep.  Cit     61,  78;    62,  319;    65,  394;   65,  395;   65,  602: 

69,   154;    71,   489;    77,   132;    77,   449;    80,   563;    80,  564: 

83,   497;    88,   575;    88,   576;    88,   577;    88,   578;    92,  200; 

97    139;    97,   140;    97,  643;    100,  15;    100,  16;    101,  460; 

102,  48;  102,  336;  105,  141;  106,  58;  111,  376;  113,  609; 


143  PLACE    OF    TRIAL.  §§  396,  397 

113,  610;   115,  250;   119,  79;   119,  80;   133,  59;   133,  60; 
133,   507;    135,  155;    135,  574;    135.  136;    136,  137;    136, 
138;    138,  580;    138,  581;    139,  715;   139,  716;    140,  472; 
140,  473;  144,  774, 
Prac.  Act,  sec.  20,    En.  April  29,  1851.    Am'd.  1858,  82. 

Cal.   Rep.   Cit.     9,   420;    13,  73;   15,  221;    22,  538;    26,  187; 

71,  489. 
Changing  venue  in  criminal  actions:  See  Pen.  Code,  sees. 
1033,  1034, 

§  396.  Action  may  be  tried  in  any  county,  unless  the 
defendant  demand  a  trial  in  the  proper  county.  If  the 
county  in  which  the  action  is  commenced  is  not  the  proper 
county  for  the  trial  thereof,  the  action  may,  notwithstand- 
ing, be  tried  therein,  unless  the  defendant,  at  the  time  he 
appears  and  answers  or  demurs,  files  an  affidavit  of  merits, 
and  demands,  in  writing,  that  the  trial  be  had  in  the 
proper  county.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  54,  407;  57,  348;  61,  75;  61,  78;  62,  319 
63,  501;  64,  299;  65,  321;  66,  37;  69,  154;  69,  155 
79,  33;  80,  561;  80,  563;  83,  497;  92.  201;  94,  398 
97,137;  97,138;  100,17;  121,606;  133,60;  134,589 
135,  579;  136,  363;  139,  716;  139,  717. 

§  397.  Place  of  trial  may  be  changed  In  certain  cases. 
The  court  may,  on  motion,  change  the  place  of  trial  in  the 
following  ca.ses: 

1.  "^Tien  the  county  designated  in  the  complaint  Is  not 
the  proper  county; 

2.  When  there  is  reason  to  believe  that  an  impartial 
trial  cannot  be  had  therein; 

3.  When  the  convenience  of  witnesses,  and  the  ends 
of  justice  would  be  promoted  by  the  change; 

4.  When  from  any  cause  the  judge  is  disqualified  from 
acting.     En.  March  11,  1872. 

Cal.   Rep.  Cit     56,  328;    56,  330;   61,  75;   79,  50;   100,  15; 

133,    60.     Subd.    1—144,    774.     Subd.   4—100,   320;    103, 

398;  104,  604;  104,  605. 
Prac.  Act,  sec.  21,     En.  April  29,  1851. 
Cal.  Rep.  Cit,     15,  221;  24,  77. 

Appeal — from  order  as  to  change  of  venue:  Post,  sec. 
939,  subd.  3. 

Judge,  when  disqualified:   See  ante,  sec.  170. 

Mandamus  and  prohibition — Controlling  action  of  court 
on  motion  to  change  the  place  of  trial  by  resort  to  these 
writs:  See  sees.  1085,  1102,  post 


55  S98-400  PL^CE   OF  TRIAL.  144 

§  398.  When  Judge  Is  disqualified,  cause  to  be  trans- 
ferred. If  an  action  or  proceeding  is  commenced  or  pend- 
ing in  a  court,  and  the  judge  or  justice  thereof  is  disquali- 
fied from  acting  as  such,  or  if,  from  any  cause,  the  court 
orders  the  place  of  trial  changed,  it  must  be  transferred 
for  trial  to  a  court  the  parties  may  agree  upon,  by  stipu- 
lation In  writing,  or  made  in  open  court  and  entered  in 
the  minutes;  or,  if  they  do  not  so  agree,  then  to  the  near- 
est or  most  accessible  court  where  the  like  objection  or 
cause  for  making  the  order  does  not  exist,  as  follows: 

1.  If  in  a  superior  court,  to  another  superior  court. 

2.  If  in  a  justice's  court,  to  another  justice's  court  In 
the  same  county.  En.  March  11,  1872.  Am'd.  1881,  23; 
1897,  184. 

Cal  Rep.  Cit.    5&,  131;   61,  216;   64,  300;   67,  331;   94,  27; 
94,  28;  98,  119;  98,  362;  100,  320;  128,  570. 

§  399.  Papers  to  be  transmitted.  Costs,  etc.  Jurisdic- 
tion, etc.  When  an  order  is  made  transferring  an  action 
or  proceeding  for  trial,  the  clerk  of  the  court,  or  justice  of 
the  peace,  must  transmit  the  pleadings  and  papers  therein 
to  the  clerk  or  justice  of  the  court  to  which  it  is  trans- 
ferred. The  costs  and  fees  thereof,  and  of  filing  the 
papers  anew,  must  be  paid  by  the  party  at  whose  instance 
the  order  was  made.  "The  court  to  which  an  action  or  pro- 
ceeding is  transferred  has  and  exercises  over  the  same 
the  like  jurisdiction  as  if  it  had  been  originally  com- 
menced therein.     En.  March  11,  1872. 

CaL  Rep.  Cit  133,  363;  136,  138;  142,  357. 

Costs  on  removal  of  criminal  action  chargeable  against 
county:  See  Pol.  Code,  sees.  4345-4347. 

§  400.  Proceedings  after  Judgment  In  certain  cases 
transferred.  'S\Tien  an  action  or  porceeding  affecting  the 
title  to  or  possession  of  real  estate  has  been  brought  in  or 
transferred  to  any  court  of  a  county  other  than  the  county 
in  which  the  real  estate,  or  some  portion  of  it,  is  situ- 
ated, the  clerk  of  such  court  must,  after  final  judgment 
therein,  certify  under  his  seal  of  oflBce,  and  transmit  to  the 
corresponding  court  of  the  county  in  which  the  real  es- 
tate affected  by  the  action  is  situated,  a  copy  of  the  judg- 
ment. The  clerk  receiving  such  copy  must  file,  docket, 
and  record  the  judgment  in  the  record  of  the  court,  briefly 

designating  it  as  a  judgment  transferred  from  court 

(naming  the  proper  court).    En.  March  11,  1872. 


146  MANNER    OF    COMMENCING.  §§  405,  406 


TITLE  V. 

OF  THE  MANNER  OF  COMMENCING  CIVIL  ACTIONS. 

§  405.    Actions,    how   commenced. 

§  406.    Complaint,    how   indorsed.    Wlien    summons   may   be   Issued,    and 

how    waived. 
§  407.    Summons,    how   Issued,    directed,    and   what   to   contain. 
§  408.     Alias  summons. 
§  409.    Notice   of   the   pendency  of  an   action   affecting  the   title   to  real 

property. 
§  410.    Summons,    how   served   and   returned. 
§  411.     Summons,    how   served. 
§  412.    Publication   when  defendant  Is  absent  from  the  state,   concealed, 

or  a  foreign  corporation  having  no  agent,  etc. 
§  413.     Manner    of    fublication. 
I  414.    Proceedings   where   there  are   several   defendants,    and   part   oaly 

are  served. 
§  41S.    Proof   of   .service,   how   made. 
5  418.    When    Jurisdiction    at   action    acquired. 

§  405.     Actions,   how   commenced.     Civil   actions   in   the 
courts  of  this  state  aro  commenced  by  filing  a  complaint 
En    Ma3<ei  il,  tSTi      Am'd.  1873-4,  296. 

Cal.  Rep.  Cit.     59,  473;  69,  526;  79,  585;  99,  205;   140,  266. 

Prac.  Act,  sec.  22.     En.  April  29,  1851.     Am'd.  1855,  303. 

Cal.  Rep.  Cit  6,  321;  19,  577;  20,  82;  21,  54;  29,  238; 
29,  239;  35,  299;  35,  301;  44,  160;  138,  218. 

§  406.  Complaint,  how  indorsed.  When  summons  may 
be  issued,  and  how  waived.  The  clerk  must  indorse  on 
the  complaint  the  day,  month,  and  year  that  it  is  filed, 
and  at  any  time  within  one  year  thereafter,  the  plaintiff 
may  have  a  summons  issued,  and  if  the  action  be  brought 
against  two  or  more  defendants  who  reside  in  different 
counties,  may  have  a  summons  issued  for  each  of  such 
counties  at  the  same  time.  But  at  any  time  within  the 
year  after  the  complaint  is  filed,  the  defendant  may,  in 
writing,  or  by  appearing  and  answering  or  demurring, 
waive  tJie  issuing  of  summons;  or,  if  the  action  be  brought 
upon  a  joint  contract  of  two  or  more  defendants,  and  one 
of  ihmn  has  appeared  within  the  year,  the  other  or  others, 
may  to  served  or  appear  after  the  year,  at  any  time  be- 
fore trial.     En.  March  11,  1872.     Am'd.  1873-4,  296. 

CaL  Rep.  Cit  53,  246;  69,  5?6;  99,  339;  100,  513;  101,  641; 
116,  450;    125.   300;    132,  83. 

Coda    Civil    Proc.— 10. 


§  407  MANNER    OF    COMMENCIMO.  M« 

Frac.  Act,  sec.   23.     En.   April   2S,   1851.     Am'd.    1860,    298. 

Cal.  Rep.  Cit.     29,   239;    34,   163;    SC,   301. 

Admission  of  service  by  defentl3Pt:  Post,  eoc.   415. 
Alias  summons:    Post,   sec.   40?. 
Appearance:  Post,  sees.  416,  1014. 

§  407.  Summons,  how  issued,  directed,  and  what  to 
contain.  The  summons  must  be  directed  to  the  defend- 
ant, signed  by  the  clerk,  and  issued  under  the  seal  of  the 
court,   and  must   contain: 

1.  The  names  of  the  parties  to  the  action,  the  court  in 
which  it  is  brought  and  the  county  in  which  the  complaint 
is  filed; 

2.  A  direction  that  the  defendant  appear  and  answer 
the  complaint  within  ten  days,  if  the  summons  is  served 
within  the  county  in  which  the  action  is  brought;  within 
thirty  days.,   if  served  elsewhere; 

3.  A  notice  that,  unless  the  defendant  so  appears  and 
answers,  the  plaintiff  will  taJte  judgment  for  any  monpy 
or  damages  demanded  in  the  complaint  as  arising  upon 
contract,  or  will  apply  to  the  court  for  any  other  relief 
demanded  in  the  complaint.  En.  March  11,  1872.  Am'd. 
1880,  13;    1S97,  53. 

Cal.  Rep.  Cit.  52,  578;  53,  254;  58,  189;  59,  141;  65,  98; 
67,  397;  76,  611;  104,  490;  128,  635;  133,  416;  133,  417; 
Subd.  3—122,  270.  Subd.  4—91.  145;  122,  270.  Subd. 
5—90,   506;    122,  270;    143,   14. 

Prac.  Act,  sec.  24.  En.  April  29,  1851.  Am'd.  1854,  59; 
1859,   39. 

Cal.  Rep.  Cit.  1,  96;   32,  353;   41,  317;    44,  633. 

Prac.  Act,  sec.  25.    En.  April  29,  1851. 

Cal.  Rep.   Cit.  2,  274;    5,  466;    32,  353;    44,  360. 

Prac.  Act,  sec.  26.     Ea.  April  29,  1851. 

Style  of  process — The  style  of  all  process  shall  be:  "The 
people  of  the  State  of  California,"  and  all  prosecutions 
shall  be  conducted  in  their  name  and  by  their  authority: 
Const.   Cal.,  art  6,  sec.  20. 

The  sovereignty  of  the  state  resides  in  the  people  there- 
of, and  all  writs  and  processes  must  issue  in  their  namo. 
Pol.   Code,   sec.  30. 


147  MAXXEn   OF   COMMENCING.  §§  408-410 

5  408.  Alias  summons.  If  the  summons  is  returned 
without  being  served  on  any  or  all  of  the  defendants,  or 
if  it  has  been  lost,  the  clerk,  upon  the  demand  of  Ine 
plaintiff,  may  issue  an  alias  summons,  in  the  same  form 
as  the  original;  provided,  that  no  such  alias  summons 
shall  be  issued  after  the  expiration  of  one  year  from  the 
date  of  the  filing  of  the  complaint.  En.  March  11,  1872. 
Am'd.   1875-6,   90;    1887,   50. 

Cal.  Rep.  Cit.  99,  339;  116,  451;  117,  581;  126,  246;  137, 
272;    137,   657;    141,   655;    141,   657;    141,   658. 

§  409.  Notice  of  the  pendency  of  an  action  affectinig 
the  title  to  real  property.  In  an  action  affecting  the  title 
or  the  right  of  possession  of  real  property,  the  plaintixX, 
at  the  time  of  filing  the  complaint,  and  the  defendant,  at 
the  time  of  filing  his  answer,  when  affirmative  relief  is 
claimed  in  such  answer,  or  at  any  time  afterward,  may 
record  in  the  oflfice  of  the  recorder  of  the  county  in  which 
the  property  is  situated  a  notice  of  the  pendency  of  the 
action,  containing  the  names  of  the  parties  and  the  ob- 
ject of  the  action  or  defense,  and  a  description  of  the  prop- 
erty in  that  county  affected  thereby.  From  the  time  of 
filing  such  notice  for  record  only  shall  a  purchaser  or  en- 
cumbrancer of  the  property  affected  thereby  be  deemed 
to  have  constructive  notice  of  the  pendency  of  the  action, 
and  only  of  its  pendency  against  parties  designated  by 
their  real  names.     En.  March  11,  187?..     Am'd.  1873-4,  2^7." 

Cal.  Rep.  Cit.  58,  152;  74,  265;  79.  122.;  96,  304;  132,  248; 
145,    581. 

Prac.  Act,  sec.  27.  Ea.  April  29,  1S51.  Am'd.  1852,  572; 
'1871-2,  18S. 

Cal.  Rep  Cit  22,  210;  26,  125;  29,  134;  2S,  136;  32,  295; 
34,  615;   43,  263;    71,  476. 

Partition — recording  notice  of  suit:   Sec.   755, 

Person  in  possession  of  real  property,  action  against, 
cannot  fce  prejudiced  by  any  alienation  made  by  him: 
Sec.   7^7. 

§  4tCl  Summons,  how  served  and  returned.  The  sum- 
mons may  be  served  by  the  sheriff  of  the  county  where 
the  defendant  is  found  or  by  any  other  person  over  the 
age  of  eighteen,  not  a  party  to  the  action.  A  copy  of  the 
complaint  must  1>9  served  with  the  summons,  upon  each 
of  th3  defendants.  When  the  summons  is  served  by  the 
sheriff,  it  must  be  returned,  with  his  certificate  of  its 
Dervic-3,  and  of  tho  service  of  any  copy  of  the  complaint, 


5  m  MANNER   OF   COMMENClNa.  1« 

whoie  such  copy  is  served,  to  the  oflBce  of  the  clerk  from 
which  it  issued.  When  it  is  served  by  any  other  person, 
it  must  be  returned  to  the  same  place  with  an  affidavit  of 
such  person  of  its  service,  and  of  the  service  of  a  copy  of 
the  complaint,  where  such  copy  is  served.  En.  March  11, 
1872.     Am'd.   1873-4,   297;    1893,  207. 

Cal.  Rep.   Cit.     57,  355;    59.  473;    60,  11;    63,  466;    72,  74; 
.   95,  654;    110,  31;    110,  32;    137,  657;    143,  21. 

Prac.  Act,  sec.  28.  En.  April  29.  1851.  Am'd.  1854.  59; 
1855,  61;  1855,  196.  Rep.  1855,  304.  Am'd.  1859,  39;  1860, 
298;  1869-70,  574. 

Cal.  Rep.  Cit.  7,  280;  11,  378;  28,  153;  34,  404;  35,  299; 
35,  301;  45,  465. 

Costs,  where  served  by  pereon  other  than  sheriff:  See 
post.  Appendix,  Costs. 

Process,  how  returnable  to  another  county:  See  Pol. 
Code,    sec.    4177. 

Return  of  sheriff  is  prima  facie  evidence:  See  Pol.  Code, 
sec.   4178. 

Delay  of  sheriff  in  making  return,  liability:  See  Pol. 
Code,   sec.    4179. 

§  411.  Summons,  how  served.  The  summons  must  be 
served  by  delivering  a  copy  thereof,  as  follows: 

1.  If  the  suit  is  against  a  corporation  formed  under  the 
laws  of  this  state:  to  the  president  or  other  head  of  the 
corporation,  secretary,  cashier,  or  managing  agent  there- 
of. 

2.  If  the  suit  is  against  a  Toreign  corporation,  or  a  non- 
resident joint  stock  company,  or  association,  doing  busi- 
ness and  having  a  managing  or  business  ageut,  cashier, 
or  secretary  within  this  state:  to  such  agent,  cashier,  or 
secretary. 

3.  If  against  a  minor  under  the  age  of  fourteen  years, 
residing  within  this  state:  to  such  minor,  personally,  and 
also  to  his  father,  mother,  or  guardian;  or,  if  there  be 
none  within  this  state,  then  to  any  person  having  the 
care  or  control  of  such  minor,  or  with  whom  he  resides, 
or  in  whose  service  he  is  employed. 

4.  If  against  a  person  residing  within  this  state,  who 
has  been  judicially  declared  to  be  of  unsound  mind,  of 
incapable  of  conducting  his  own  affairs,  and  for  wh&iaa 
a  guardian  has  been  appointed:  to  sucla  person  and  alas 
to   his  guardian. 

5.  If  against  a  county,  city  or  town:  to  the  presideaft 
of  the  board  of  supervisors,  president  of  th©  council  oo 


143  MANNER    OF    COMMENCING.  §  412 

trustees,    or    other     head    of    the     legislative    department 
thereof. 

6.  In  all  other  cases  to  the  defendant  personally.  En. 
March  11,  1872.     Am'd.  1873-4,  298. 

Cal.  Rep.  Cit.     59,  473;    59,  493;    139,   177;    139,  178;    143, 

21.     Subd.  1—79,  104;   127,  68;   128,  332.     Subd.  2—66, 

315;  97,  397;   127,  68.     Subd.  3—64,  597;   80,  499;   120, 

430.     Subd.   4—87,    531;    134,   633. 

Prac.  Act,  sec.  29.     En.  April  29,  1851.     Am'd.  1854,   59; 

1861,  496. 

Cal.  Rep.   Cit.     6,  187;    9,  637;     16,   388;    20,  82;    38,  153; 

38,  154;    51,  617;   53,  741;    64,  597. 
Association,  service  may  be  on  one  of  the  members  of: 
Ante,  sec.  388. 

Return    of    summons:  Post,    sec.    415. 
Telegraph,    service    by:  Post,    sec.    1017. 

§  412.  Publication  when  defendant  is  absent  from  the 
state,  concealed,  or  a  foreign  corporation  having  no  agent, 
etc.  Where  the  person  on  whom  service  is  to  be  made 
resides  out  of  the  state;  or  has  departed  from  the  state; 
or  cannot,  after  due  diligence,  be  found  within  the  state; 
or  conceals  himself  to  avoid  the  service  of  summons;  or 
is  a  foreign  corporation  having  no  managing  or  business 
agent,  cashier  or  secretary  within  the  state,  and  the  fact 
appears  by  affidavit  to  the  satisfaction  of  the  court,  or 
a  judge  thereof;  and  it  also  appears  by  such  affidavit,  or 
by  the  verified  complaint  on  file,  that  a  cause  of  action 
exists  against  the  defendant  in  respect  to  whom  the  ser- 
vice is  to  be  made,  or  that  he  is  a  necessary  or  proper 
party  to  the  action;  or  when  it  appears  by  such  affidavit, 
or  by  the  complaint  on  file  herein,  that  it  is  an  action 
which  relates  to  or  the  subject  of  which  is  real  or  per- 
sonal property  in  this  state,  in  which  such  person  ds- 
fendant  or  foreign  corporation  defendant  has  or  claims 
a  lien  or  interest,  actual  or  contingent,  therein,  or  in 
which  the  relief  demanded  consists  wholly  or  in  part  in 
excluding  such  person  or  foreign  corporation  from  any 
interest  therein,  such  court  or  judge  may  make  an  order 
that  the  service  be  made  by  the  publication  of  the  sum- 
mons, provided  that  where  service  is  sought  to  be  made 
upon  a  person  who  cannot,  after  due  diligence,  be  found 
within  the  state  it  must  first  appear  to  the  court  by  the 
affidavit  aforesaid  that  there  has  not  been  filed,  on  be- 
half of  such  person,  in  the  county  where  such  action  is 
pending,  the  certificate  of  residence  provided  for  by  sec- 


5  413  MANNER    OF    COMMENCINO.  160 

lion  one  thousand  one  hundred  and  jlA.ty-three  of  the 
Civil  Code  in  the  county  in  which  the  action  Is  brought; 
or  that  said  certificate  was  so  filed  and  that  the  defendant 
cannot  be  found  at  the  phice  named  in  said  certificate, 
which  latter  fact  must  be  made  to  appear  by  the  certificate 
of  the  sheriff  of  the  county  wherein  said  defendant  claims 
residence  in  and  by  said  certificate  of  residence,  and  which 
certificate  of  said  sheriff  must  show  that  servUe  of  said 
Bummons  was  attempted  upon  said  defendant  at  the  place 
named  In  said  certificate  of  residence  but  that  said  de- 
fendant was  not  to  be  found  thereat.  En.  March  11,  1872. 
Am'd.  1880,  13;  1893,  285;  1905,  141. 
Cal.  Rep.  Cit.     C4,  597;    G7,  19;    68,  87;   70,  433;    70,  436; 

72,  68;     73,  600;     76,  611;     76,  C12;     76,  614;     76,  647; 

86,  583;    86,  584;    92,  346;    92,  2c5;    £9.  325;    101,  573; 

109,  254;    115,  277;    119,  301;    13V,  ^kZ;    a27,  655;    138, 

446;    144,  415;    144,  787. 
Prac.  Act,   sec.  30.     En.   April   29,   1851. 
Cal.   Rep.   Cit.   5,  466;   20,   82;   26,   152;    26,    1.54;    31,   351; 
64,  597. 

§  413.  Manner  of  publication.  The  order  must  direct 
the  publication  to  be  made  in  a  newspaper  to  be  desig- 
nated, as  most  likely  to  give  notice  to  the  person  to  be 
served,  and  not  for  such  length  ot  time  as  may  br  deemed 
reasonable,  at  least  once  a  week;  but  publijation  against 
a  defendant  residing  out  of  the  state,  or  absent  therefrom, 
must  not  be  less  than  two  months.  In  case  of  publica- 
tion, where  the  residence  of  a  nonresident  or  absent  de- 
fendant is  known,  the  court  or  judge  must  direct  a  copy 
of  the  summons  and  complaint  to  be  forthwith  deposited 
in  the  postoffice,  directed  to  the  person  to  be  served,  at 
his  place  of  residence.  When  publication  is  ordered,  per- 
sonal service  of  a  copy  of  the  summons  and  complaint 
out  of  the  state  is  equivalent  to  publication  and  deposit  in 
the  postoffice,  and  in  either  case  the  service  of  the  sum- 
mons is  complete  at  the  expiration  of  the  time  prescribed 
by  the  order  for  publication.  En.  March  11,  1872.  Am'd. 
1873-4,  299. 

CaL  Rep.  Cit.  67,  19;  68,  87;  72,  68;  72.  72;  76,  614; 
86,  583;  92,  355;  101,  249;  133,  460;  137,  426;  144, 
423;    144,   424;    144,  490. 

Prac.   Act,  see.   31.     En.   April   29,   1851.     Am'd.    1869-70, 
511;  1871-2,  190. 

Cal.  Rep.  Cit.  1,  176;  5,  466;  6,  184;  12,  102;  26,  152- 
26,  154;  31,  351;   32,  350;  33,  514;  34,  404. 


151  MANNER    OF    COMMENCING.  §§  414-418 

•  Publication,  proof  of:    Post,  sees.  2010,  2011. 
Judgment  by  default:  Post,  sec.  585,  subd.  3. 

§  414,  Proceedings  where  there  are  several  defendants, 
and  part  only  are  served.  When  the  action  is  asainst  two 
or  more  defendants,  jointly  or  severally  liable  on  a  con- 
tract, and  the  summons  is  served  on  one  or  more  but  not 
on  all  of  them,  the  plaintiff  may  proceed  against  the  de- 
fendants serve-d  in  the  same  manner  as  if  they  were  the 
only  defendants.     En.  March  11,  1872. 

Cal.  Rep.  Clt.  58,  GOT;  G7,  14C;  67,  M7;  68,  426;  68,  427; 
68,  428;  69,  458;  69,  621;  70,  114;  70,  405;  73,  391; 
75,  593;  94,  299;  103,  207;  125,  270;  136,  302;  136,575; 
144,   4. 

Prac.  Act,  sec.  32.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  6,  183;  12,  351;  17,  566;  39,  95;  50,  532; 
67,  146;    68,  426;    68,  427. 

Joining  persons  severally  liable  upon  Instruments:  Ante, 
Bee.  383. 

Judgment  against  some  defendants,  proceedings  contin- 
uing against  the  others:   Post,  sec.  579. 

Joint  debtors,  proceedings  against,  after  Judgment 
against  some:   Post,  sees.  989  et  seq. 

§  415.  Proof  of  service,  how  made.  Proof  of  the  service 
of  summons  and  complaint  must  be  as  follows: 

1.  If  served   by   the  sheriff,  his  certificate   thereof; 

2.  If  by  any  other  person,  his   affidavit  thereof;    or, 

8.  In  case  of  publication,  the  afladavit  of  the  printer, 
or  his  foreman  or  principal  clerk,  showing  the  same;  and 
an  affidavit  of  a  deposit  of  a  copy  of  the  summons  in  the 
postotflce.  If  the  same  has  been  deposited;   or, 

4.  The  written  admission  of  the  defendant. 

In  case  of  service  otherwise  than  by  publication,  the 
certificate  or  aflfldavit  must  state  the  time  and  place  of 
service.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  128,  332.  Subd.  1—59,  493.  Subd.  3—72, 
74;  73,  600;  93,  607;  101,  573;  119,  301;  134,  623. 

Prac.  Act,  sec.  33.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  11.  314;  33,  512;  33,  514;  34,  404;  34,  425, 
34.  430. 

Prac.  Act,  sec.  34.     En.   April  29,  1851. 

Cal.   Rep.   Cit.     34,  404;    45,   463. 

§  416.  When  Jurisdiction  of  action  acquired.  From  the 
time  of  the  service  of  the  summons  and  of  a  copy  of  the 


§  520  THE   PLEADINGS   IN   GENERAL.  US 

complaint  In  a  civil  action,  where  service  of  a  copy  of 
the  coraplalnt  Is  required,  or  of  the  completion  ot  the  pub- 
UcJitlcn  when  serrlce  by  publication  is  ordered,  the  court 
1e  deemed  to  have  acquired  Jurisdiction  of  the  parties,  and 
to  have  control  of  all  the  subsequent  proceedings.  The 
voluTitary  appearance  of  a  defendant  is  equivalent  to  per- 
sonal service  of  the  summons  and  copy  of  the  complaint 
upon  him.     En.  March  11,  1872.    Am'd.  1873-4,"  299. 

Cal.  Rep.  Clt.  &6,  629;  59,  473;  60,  299;  64,  598;  75,  220; 
75,  239;  84.  29;  87,  152;  92,  355;  99,  205;  1C3,  522; 
117,  581;    122,  450;   125,  300;  133,  71;  141,  657;  144,  30. 

Prac.  Act,  sec.  35.     En.  April  29,  1851. 

C&l.  Rep.   Clt.     1.  872;   6,  296;   9,  111;    45,  463. 

Admission  of  servlca:    Ante,  sec.   415. 

Appearance:    Post,  sec.   1014. 

Waiver  of  Bummons:  Ante,  sec.  406. 


TITLE    VI. 

OF    THE    PLEADINGS    IN    CIVIL    ACTIONS. 

Chapter  I.  The   Pleadings   in   General,   §§   420-422. 

II.  The    Complaint,    §§    425-427. 

III.  Demurrer  to  the   Complaint,   §§   430-434. 

IV.  The   Answer,    §§   437-442. 

V.    Demurrer  to   Answer,   §§   443,  444. 
VI.    Veriflcation    of    Pleadings.    §§    446-449. 
VII.     General  Rules  of  Pleading,  §§   452-465. 
VIII.    Variance — Mistakes   In   Pleadings   and   Amend- 
ments, §§  469-476. 

CHAPTER   I. 

THE  PLEADINGS  IN  GENERAL. 

5  420.    Deflnltlon   of  pleadings. 

5  421.    This   code   prescribes   the   form   and  rules  of  pleadings. 

§  422.    What    pleadings    are    allowed. 

g  420.  Definition  of  pieadings.  The  pleadings  are  the 
formal  allegations  by  the  parties  of  their  respective  claims 
and  defenses  for  the  judgment  of  the  court.  En.  March 
11,  1872. 

Cal.  Rep.  Clt.     71,  522;    117,  240. 

Prac.   Act,  sec.   36.     En.   April  29,  1851. 


lEJ  THE   CX)MPL.ArNT.  S§  421-45M 

I  421.  This  code  prescribes  the  form  and  rules  of 
pleadings.  The  forms  of  pleading  in  civil  actions,  and  the 
rules  by  which  the  suflaciency  of  the  pleadings  is  to  be 
determined  are  those  prescribed  by  this  code.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.    83,  397;    114,  475;    139,  474. 

Prac.   Act,  sec.   37.    En.  April  29,  1851. 

Cal.  Rep.  Cit.    9,  467;   9,  475;   16,  243;   24,  95. 

One  form  of  actions:  Ante,  sec.  307. 

Rules  of  pleading,  generally:    Post,  sees.  452  et  seq. 

I  422.  What  pleadings  are  allowed.  The  only  pleadings 
allowed  on  the  part  of  the  plaintiff  are: 

1.  The   complaint; 

2.  The  demurrer  to  the  answer. 
And  on  the  part  of  the  defendant: 

1.  The  demurrer  to  the  complaint; 

2.  The  answer.     En.   March  11,  1872. 

Cal.  Rep.  Cit.    56,  325;   114,  475. 

Prac.  Act,  sec.  38.  En.  April  29,  1851.  Am'd.  1855,  303; 
1860,  298;    1863,  578;   1866,  701. 

Cal.  Rep.  Cit.     1,  174;   5,  125;   34,  27;   34,  28;   38,  585;  Sa, 
177;    77,   226. 


CHAPTER  II. 

THE    COMPLAINT. 

S  425.    Complaint,   first   pleading. 

§  436.    Complaint,   what  to  contain. 

§  427.    What   causes   of  action   may   be  joined. 

S  425.  Complaint,  first  pleading.  The  first  pleading  on 
the  part  of  the  plaintiff  is  Uie  complaint.  iiU.  March  11, 
1872. 

§  426.  Complaint,  what  to  contain.  The  complaint  must 
contain: 

1.  The  title  of  the  action,  the  name  of  the  court  and 
county  in  which  the  action  is  brought,  and  the  names  of 
the  parties  to  the  action; 

2.  A  statement  of  the  facts  constituting  the  cause  of 
action,  in  ordinary  and  concise  language; 


!  4?7  TJfE    COMPLAINT.  154 

3.  A  doTnand  uf  the  relief  wliich  the  plaintifT  claims. 
If  the  recovery  of  money  or  dauiages  m  Oemrnded,  tho 
amount  thereof  must  be  stated.     Ea.   March   11,   1872. 

Cal.  Rep.  Cit.  79,  5cS5;  124,  83-1  Subd.  2— fil,  5^5;  G3, 
427;  77,  413;  81.  121;  83,  397;  93,  57;  94,  174;  99,  418; 
126,  634;    139,  474.     Subd.   3—99,  244. 

Prac.  Act,  sec.  39.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  1,  96;  7,  261;  25,  89;  37,  2.W;  37.  r^o.'?;  4.\ 
491. 

Title,  papers  defectively  entitled:   Post,  sec.   10 IG. 

Venue:   Ante,    sees.    392-40G. 

Parties:   Ante,    sees.    367-390. 

Parties,  misjoinder   or   nonjoinder:  Post,  sec.   430. 

Association  may  be  sued  under  cfammon  name:  Ante, 
sec.   388. 

Intervention:   Ante,    sec.    387. 

Fictitious  names  for  defendants:   Post,  sec.  474. 

Abbreviations  and   numerals:   Ante,   sec.   186. 

Construction  of  pleadings   to   be   liberal:   Post,   sec.   45?.. 

Errors  and  defects  to  be  disregarded:   Post.  sec.  475. 

Material  allegations  not  controverted  taken  as  true: 
Post,   sec.    462. 

Service  of  complaint:  Ante,  sec.  410. 

Several   causes   of   action,    uniting:  Post,    sec.    427. 

Pleading,    in   particular   cases:   See   Particular   Titlo. 

Amendment  of  pleadings:  Post,  sees.  472,  473;  of  com- 
plaint:  Post,  sec.  432. 

As  to  effect  of  setting  out  written  instrument  if  its 
genuineness  is  not  denied  on  oath:  Post,  sees.  447-449. 

Variance:  Post,   sees.   469   et  seq. 

Gold  coin,  allegations  to  obtain  judgment  In:  Post,  sec. 
667. 

Supplemental   complaint:   Post,   sec.   464. 

Verification  of  pleadings:  Post,  sec.   446. 

§  427.     What    causes    of    action     may    be    joined.     The 

plaintiff  may  unite  several  causes  of  action  in  the  same 
complaint,  where  they  all  arise  out  of: 

1.  Contracts,   express   or   implied; 

2.  Claims  to  recover  specific  real  property,  with  or 
without  damages  for  the  withholding  thereof,  or  for  waste 
committed  th-^reon,  and  the  rents  and  profits  of  the  same; 

3.  Claims  to  recover  specific  personal  property,  witn 
or   without  damages  for  the  withholding  theieof; 


155  DETMURRER   TO   CO\TPl.ArNT.  5  -17.0 

4.  Claims  against  a  trustee  by  virtue  of  a  coulract  or 
by  operation  of  law; 

5.  Injuries  to   character; 

6.  Injuries  to  person; 

7.  Injuries  to   property; 

The  causes  of  action  so  united  must  all  belong  to  one 
only  of  these  classes,  and  must  affect  all  the  parties  to  the 
action,  and  not  require  different  places  of  trial,  and  must 
be  separately  stated;  but  an  action  for  malicious  arrest  and 
prosecution,  or  either  of  them,  may  be  united  with  the  ac- 
tion for  either  an  injury  to  character  or  to  the  person. 
En.   March  11,   1872. 

Cal.  Rep.  Cit.  51,  491;  65,  488;  73,  190;  SO,  324;  83,  400 
90,  76;  96,  401;  96,  402;  100,  373;  102,  510;  105,  689 
109,  209;  135,  560;  137,  649.  Subd.  1—88,  541;  92,  102 
104,  640.  Subd.  2—65,  162;  72,  329.  Subd.  4—71,  188 
71,  189;  125,  234;  140,  50;  146,  56. 

Prac.  Act,  sec.  64.    En.  April  29,  1851.     Am'd.  1855,  196. 

Cal.  Rep.  Cit.     1,  192;    3,  206;    15,   152;    22,  462;    28,  488; 
28,  639;   31,  496;    32,  342;   36,  283;    46,  171;    50,  654. 


CHAPTER    III. 

DEMURRER    TO    THE    COMPLAINT. 

§  430.    When   defeirdant  may  demur. 

§  431.    Demurrer    must    specify,    etc.    May    be    taken    to    part.    May    an- 
swer  and   demur   at    same    time. 
§  4'32.     What   proceedings   are   to   be   had    when   complaint   amended. 
§  433.     Objection   not  appearing  on  complaint,   may   be  taken  by  answer. 
§  434.    Objections,    when   deemed   waived. 

§  430.  When  defendant  may  demur.  The  defendant 
may  demur  to  the  complaint  within  the  time  required  in 
the  summons  to  answer,  when  it  appears  upon  the  face 
thereof,    either: 

1.  That  the  court  has  no  jurisdiction  of  the  person  of 
the  defendant,   or  the  subject  of  the  action;    or, 

2.  That  the  plaintiff  has  not  legal  capacity  to  sue;  or, 

3.  That  there  is  another  action  pending  between  the 
same  parties  for  the  same  cause;  or. 


55  431.  C2  DEMURRER    TO    COMPLAINT.  IM 

4.  That  there  is  a  defect  or  misjoinder  of  parties  plain- 
tiff or  defendant;    or, 

5.  That  several  causes  of  action  have  been  improperly 
united;    or, 

6.  That  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action;   or, 

7.  That  the  complaint  is  ambiguous,  unintelligible,  or 
uncertain.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  54,  292;  76,  43;  77,  311;  98,  417;"  118,  224; 
118,  239;  124,  83;  125.  Ill;  136,  614.  Subd.  2—66.  59; 
144,  364;  146,  180;  146.  181.  Subd.  4—95,  133;  110, 
289;  110,  460.  Subd.  5—90,  76;  102.  509;  110, 
487.  Subd.  6—68,  59.  Subd.  7—82,  212;  87,  458;  121, 
171;    123,   88;    137,  153. 

Prac.  Act,  sec.  40.     En.  April  29,  1851.    Am'd.  1859.  139. 

Cal.  Rep.  Cit.  1,  174;  1,  395;  4,  313;  6,  165;  7,  334;  8, 
369;  8,  517;  8,  590;  25,  89;  32,  119;  32,  342;   43,  184. 

General  and  special  demurrer:   See  sec.  431,  infra. 
Demurring  and  answering  at  same  time:   Post,  sees.  431, 
441. 
Serving  demurrer:  Post,   sec.   465. 
Judgment  on  demurrer:  Post,  sec.   636. 
Demurrer  is  an  appearance:   Post,  sec.  1014. 
Waiving  objections  by  not  demurring:  Post,  sec.  434. 

§  431.  Demurrer  must  specify,  etc.  May  be  taken  to 
part.  May  answer  and  demur  at  same  time.  The  de- 
murrer must  distinctly  specify  the  grounds  upon  which 
any  of  the  objections  to  the  complaint  are  taken.  Unless 
it  do  so,  it  may  be  disregarded.  It  may  be  taken  to  the 
whole  complaint  or  to  any  of  the  causes  of  action  stated 
therein,  or  the  defendant  may  demur  and  answer  at  the 
same  time.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     96,  493;   118,  420;   133,  310. 

Prac.  Act,  sec.  41.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  25,  89;   25,  90;   25,  91;   25,  92;   26,  154;  30, 

673. 

Prac.  Act,  sec.  42.     En.  April  iJ9,  1851. 

Cal.   Rep.   Cit.  1,  174;    38,   541. 

§  432.  What  proceedings  are  to  be  had  when  complaint 
amended.  If  the  complaint  is  amended,  a  copy  of  the 
amendments  must  be  filed,  or  the  court  may,  in  its  dis- 


15T  ■         DEMURRER    TO    COMPLAINT.  5  §  433,  434 

cretlon,  require  the  complaint,  as  amended,  to  be  filed, 
and  a  copy  of  the  amendments,  or  amended  complaint, 
must  be  served  upon  the  defendants  affected  thereby.  The 
defendant  must  answer  the  amendments  or  the  complaint, 
as  amended,  within  ten  days  after  service  thereof,  or  such 
other  time  as  the  court  may  direct,  and  judgment  by  de- 
fault may  be  entered  upon  failure  to  answer,  as  in  other 
cases.     En.  March  11,  1872,    Am'd.  1880.  2. 

Cal.  Rep.  Cit.  58,  45;  58,  94;  60,  295;  60,  405;  72,  88; 
90,  61;   99,  205;    99,  206;    137,  676;    146,  182. 

Prac.  Act,  sec.  43.  En.  April  29,  1851.  Am'd.  1854,  60; 
l6o5,  196. 

Cal.  Rep.  Clt.     1,  174;    1,  395. 

Amendment — generally:  Post,  sees.  472,  473. 

§  433,  Objection  not  appearing  on  compiaint,  may  be 
taken  by  answer.  When  any  of  the  matters  enumerated  in 
section  430  do  not  appear  upon  the  face  of  the  complaint, 
the  objection  may  be  taken  by  answer.    En.  March  11,  1812. 

Cal.  Rep.  Cit.  60,  405;  66,  517;  87,  460;  92,  88;  95,  133; 
110,  460;   121,  571;   130,  520. 

Prac.  Act,  sec.  44.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  1,  175;  1,  395;  4,  313;  6,  165;  7,  334;  8, 
590;  25,  89;  25,  91;  31,  420;  36,  126;  47,  221,  144,  364; 
146,    181. 

§  434.  Objections,  when  deemed  waived.  If  no  objec- 
tion be  taken,  either  by  demurrer  or  answer,  the  defendant 
must  be  deemed  to  have  waived  the  same,  excepting  only 
the  objection  to  the  jurisdiction  of  the  court,  and  tbe  ob- 
jection that  the  complaint  does  not  state  facts  sufficient  to 
constitute  a  cause  of  action.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  59,  516;  66,  59;  69,  157;  70,  78;  70,  405; 
74,  153;  77,  392;  78,  256-  82,  525;  92,  88;  95,  133; 
95,  579;  96,  611;  101,  641;  103,  445;  110,  289;  110,  337; 
110,  460;  110,  487;  121,  571;  124,  130;  134,  412;  136,  614; 
137,  306;  139,  55;  142,  70;   144,  364;  145,  185;  147,  694. 

Prac.  Act,  sec.  45.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  1,  195;  1,  372;  4,  313;  7,  334;  8,  517;  8, 
590;  21,  635;  22,  639;  25,  88;  25,  90;  30,  673;  31,  420; 
32,  342;   33,  656;   36,  126. 


§  4;J7  THE    ANSWKR.  "  US 

CHAPTER    IV. 

THE    ANSWER. 

j  437.    Answer,    what   to   contain. 

§  438.     When    counterclaim    may   be   set    up. 

§  439.    When   defendant   omits   to   set   up  counterclaim. 

§  440.     Counlerclaim    not    barred    by    death    or   assignment. 

§  441.     Answer   may    contain    several    grounds   o£   derense. 

Defendant   may   answer    part   and   demur     to   part     of  com- 
plaint. 

§  442.     Cross-couiplalnt. 

§  437.  Answer,  what  to  contain.  The  answer  of  the 
defendant  shall  contain: 

1.  A  general  or  specific  denial  of  the  material  allega- 
tions of  the  complaint  controverted  by  the  defendant. 

2.  A  statement  of  any  new  matter  constituting  a  de- 
fense or  counterclaim.  If  the  complaint  be  verified,  the 
denial  of  each  allegation  controverted  must  be  specific,  and 
be  made  positively,  or  according  to  the  information  and 
belief  of  the  defendant.  If  the  defendant  has  no  informa- 
tion or  belief  upon  the  subject  sufficient  to  enable  him  to 
answer  an  allegation  of  the  complaint,  he  may  so  state 
in  his  answer,  and  place  his  denial  on  that  ground.  If  the 
complaint  be  not  verified,  a  general  denial  is  sufiicient,  but 
only  puts  in  issue  the  material  allegations  of  the  com- 
plaint.    En.  March  11,  1872.     Am'd.  1873-4,  300. 

Cal.  Rep.  Cit.  65,  324;  65,  385;  92,  180;  94,  174;  98,  646; 
100,  488;  119,  433;  119,  472;  129,  50.  Subd.  1—139, 
378;  143,  133.  Subd.  2—89,  445;  99.  87;  100,  486;  118, 
690;  119,  471;  121,  271;  126,  293;  128,  328;  132,  11; 
133,  71;    138,  722. 

Prac.  Act,  sec.  46.  En.  April  29,  1851.  Am'd.  1854,  60; 
1860,  298;  1862,  562;  1866,  702. 

Cal.  Rep.  Cit.  6,  200;  8,  149;  8,  369;  9,  38;  9,  62;  18, 
314;  19,  658;  21,  435;  25,  89;  26,  306;  27,  371;  32,  629; 
33,  211;  35,  280;  38,  585;  39,  177. 

Pleas  in  abatement:    See  ante,  sec.  430. 

Amendment:    Ante,   sees.   472,   473. 

Appearance,  answering  is:    Post,  sec.  1014. 

Counterclaim:  Post,  sees.  438-441. 

Cross-complaint:   Post,  sec.  442. 

Death  of  party:   Ante,  sec.  385. 

Disability  of  party:    Ante,  sec.  385. 

Errors  and  defects  to  be  disregarded:   Post,  sec.  475. 


159  THE     ANSWER. 


§§  43S-440 


Gold  coin,  etc.,  allegations  as  to  money  being  payable  in 
should  be  denied:   Post,  sec.  667. 

Striking  out:   Post,  sec.  453. 

Supplemental  answer:    Post,  sec.  464. 

Time  to  answer — extension  of:   Post,  sec.  1054. 

Writing— Setting  forth  in  answer,  effect  of:  Post,  sees 
44,8,  449. 

Particular  actions,  answers  in:   See  Particular  Title. 

§  438.  When  counterclaim  may  be  set  up.  The  counter- 
claim mentioned  in  the  last  section  must  be  one  existing 
in  favor  of  a  defendant  and  against  a  plaintiff  between 
whom  a  several  judgment  might  be  had  in  the  action,  and 
arising  out  of  one  of  the  following  causes  of  action: 

1.  A  cause  of  action  arising  out  of  the  transaction  set 
forth  in  the  complaint  as  the  foundation  of  the  plaintiff's 
claim,  or  connected  with  the  subject  of  the  action; 

2.  In  an  action  arising  upon  contract;  any  other  cause 
of  action  arising  also  upon  contract,  and  existing  at  the 
commencement  of  the  action.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  51,  540;  57,  647;  65,  324;  C5,  32G;  Gi),  618; 
70,  112;  72,  226;  72  227;  87,  266;  96,  91;  101,  290; 
104,  135;   107,  67;   110.  264;   110,  266;   113.  440;  116,  96; 

119,  472;  119,  474;  126,  293;  126,  295;  132,  161; 
140,  498;  142,  420.  Subd.  1—53,  32;  67,  590;  70, 
113;  100,  34;  110,  263;  120,  413;  125.  49;  129,  4/9;  135, 
40;  137,  338;  140,  498;  142,  421.  Subd.  2—51,  226; 
58.  354;   64,  274;   64,  491;   101,  649;   118,  337;   119.  471; 

120.  28;   120.  413;   125,  49;   126,  293;   143,  255. 

Prac.  Act,  sec.  47.     En.  April  29.  1851.     Am'd.  1860,  299. 
Cal.  Rep.  Cit.     8.  405;   19.  658;   30,  252;    35,  280;   39,  177; 

39,  178;   39,  392;  50,  654. 
Dismissing  action  where  counterclaim:   Post,  sec.   581. 
Omission  to  set  up  counterclaim  prevents  future  action 
thereon:   Post,  sec.   439. 

Compensated,  cross-demands  deemed:  Post.  sec.  440. 

§  439.  When  defendant  omits  to  set  up  counterclaim.  If 
the  defendant  omit  to  set  up  a  counterclaim  in  the  cases 
mentioned  in  the  first  subdivision  of  the  last  section,  neith- 
er he  nor  his  assignee  can  afterward  maintain  an  action 
against  the  plaintiff  therefor.     En.  March   11,  1872. 

Cal.  Rep.  Cit.  58,  611;  129,  479;  135,  41.  Subd.  3.— 130, 
520. 

§  440.  Counterclaim  not  barred  by  death  or  assignment. 
When  cross-demands  have  existed  between  persons  under 


§5  4fl,  442  THE    ANSWER.  MB 

such  circumstances  that,  If  one  had  brought  an  action 
against  the  other,  a  counterclaim  could  have  been  set  up, 
the  two  demands  shall  be  deemed  compensated,  so  far  as 
they  equal  each  other,  and  neither  can  be  deprived  of  the 
benefit  thereof  by  the  assignment  or  death  of  the  other. 
En.  March  11,  1872.     Am'd.  1873-4,  300. 

Cal.  Rep.  Cit.  43,  146;  65,  324;  107,  62;  107,  67;  110,  266; 
118,  341;  119,  474;  126,  293;  126,  295;  136,  628. 

Prac.  Act,  sec.  48.     En.  April  29,  1851. 

§  441.  Answer  may  contain  several  grounds  of  defense. 
Defendant  may  answer  part  and  demur  to  part  of  com- 
plaint. The  defendant  may  set  forth  by  answer  as  many 
defenses  and  counterclaims  as  he  may  have.  They  must 
be  separately  stated,  and  the  several  defenses  must  refer 
to  the  causes  pf  action  which  they  are  intended  to  answer, 
in  a  mannner  by  which  they  may  be  intelligibly  distin- 
guished. The  defendant  may  also  answer  one  or  more 
of  the  several  causes  of  action  stated  in  the  complaint, 
ajid  demur  to  the  residue.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  92,  180;  115,  316;  121,  171;  121,  417;  129, 
651. 

Prac.  Act,  sec.  49.     En.  April  29,  1851. 
Cal.  Rep.  Cit.     22,  677;   28,  387;   43,  268. 

§  442.  Cross-complaint.  Whenever  the  defendant  seeks 
affirmative  relief  against  any  party,  relating  to  or  depend- 
ing upon  the  contract  or  transaction  upon  which  the  ac- 
tion is  brought,  or  affecting  the  property  to  which  the  ac- 
tion relates,  he  may,  in  addition  to  his  answer,  file  at 
the  same  time,  or  by  permission  of  the  court  subsequently, 
a  cross-complaint.  The  cross-complaint  must  be  served 
upon  the  parties  affected  thereby,  and  such  parties  may 
demur  or  answer  thereto  as  to  the  original  complaint.  En. 
Stats.  1873-4,  301. 

Cal.  Rep.  Cit.  57,  589;  57,  593;  57,  647;  58,  239;  64,  514; 
68,  280;  69,  618;  69,  619;  71,  149;  74,  492;  81,  188; 
82,  416;  83,  599;  84,  587;  84,  589;  87,  153;  87,  264; 
91,  554;  109,  110;  110,  152;  112,  651;  120,  57;  120,  58; 
122,  249;  125,  660;  120,  60;  126,  318;  126,  594;  127.  615; 
127,  617;  127,  621;  130,  44;  135,  44;  136,  315;  130,  509; 
136,  535;  138,  317;  140,  498;  141,  474;  142,  206;  142, 
420;  142,  421;   144,  729;   145,  570. 

Original    complaint:    Sees.    420,   427. 

Dismissing  action,  where  cross-complaint:   Post,  sec.  581. 


DEMURRER     TO     ANSWER.  5§  413.  44* 


CHAPTER  V. 

DEMURRER    TO    ANSWER. 

§  443.    When  plaintiff  may  vlemur  to  answer. 
§  444.     Grounds  of  demurrer. 

§  443.  When  plaintiff  may  d:mur  to  answer.  The  plain- 
tiff may,  within  the  same  length  of  time  after  service  of  the 
answer  as  the  defendant  is  allowed  to  answer  after  service 
of  summons,  demur  to  the  answer  of  the  defendant,  or  to 
one  or  more  of  the  several  defenses  or  counterclaims  set 
up  in  the  answer.     En.  March  11,  1872.     Am'd.  1873-4,  301. 

Cal.  Rep.  Cit.     109,  443;   110,  152;   119,  529. 

Prac.  Act,  sec.  50.  En.  April  29,  1851.  Am'd.  1854,  60; 
1860,  299;  1862,  562;  1866,  702. 

Cal.  Rep.  Cit  18,  387;  28,  297;  30,  564;  34,  161;  38,  585; 
98,  417. 

Demurrer  to  complaint:   Ante,  sec.  430. 
Service  of  demurrer:  Pest,  sec.  465. 
Time  to  demur,  extending:   Post,  sec.  1054. 
Time  to  answer  when  demurrer  overruled  begins  to  run 
from  service  of  notice  of  decision:  Post,  sec.  476. 

§  444.  Grounds  of  demurrer.  The  demurrer  may  be 
taken  upon  one  or  more  of  the  following  grounds: 

1.  That  several  causes  of  counterclaim  have  been  im- 
properly joined; 

2.  That  the  answer  does  not  state  facts  sufficient  to  con- 
stitute a  defense  or  counterclaim; 

3.  That  the  answer  is  ambiguous,  unintelligible,  or  un- 
certain.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     68,  329;   87,  405;   119,  529. 

Grounds  of  demurrrer:   Ante,  sec.  430. 

Code   Civil    Proc.— U. 


I  tM  VERIFICATION    OF    PLEADINGS.  Ifi2 

CHAPTER   VI. 

VERIFICATION    OF    PLEADING3. 

S  *ii.    VerlflcallOH   of   pleadings. 

9  447.    Copy    of    written    Instrument    contained    In    convplaJnt    admitted, 

unless  answer  Is  verified. 
i  448.    When    defense    la    founded    on    written    Instrument    set    out    In 

answer,    Its   execution    admitted,    unless   denied    by   plaintiff, 

under  oath. 
S  449.    ElxcepUons  to  rules  prescribed  by  two  preceding  sections. 

5  446.  Verification  of  pleadings.  Every  pleading  must 
be  subscribed  by  the  party  or  bis  attorney;  and  when  the 
complaint  is  verified,  or  when  the  state,  or  any  officer  of 
the  state,  in  his  official  capacity,  is  plaintiff,  the  answer 
must  be  verified,  unless  an  admission  of  the  truth  of  the 
complaint  might  subject  the  party  to  a  criminal  prosecu- 
tion, or,  unless  an  officer  of  the  state,  in  his  official  capa- 
city, is  defendant.  In  all  cases  of  a  verification  of  a 
pleading,  the  affidavit  of  the  party  must  state  that  the 
same  is  true  of  his  own  knowledge,  except  as  to  the  mat- 
ters which  are  therein  stated  on  his  information  or  be- 
lief, and  as  to  those  matters  that  he  believes  it  to  be 
true;  and  where  a  pleading  is  verified,  it  must  be  by  the 
affidavit  of  a  party,  unless  the  parties  are  absent  from  the 
county,  where  the  attorney  resides,  or  from  some  cause 
unable  to  verify  it,  or  the  facts  are  within  the  knowledge 
of  his  attorney  or  other  person  verifying  the  same.  When 
the  pleading  is  verified  by  the  attorney,  or  any  other  per- 
son except  one  of  the  parties,  he  must  set  forth  in  the 
affidavit  the  reasons  why  it  is  not  made  by  one  of  the 
parties.  When  a  corporation  is  a  party,  the  verification 
may  be  made  by  any  officer  thereof.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  52,  182;  58,  40;  58,  41;  60,  375;  65,  337; 
65,  338;  68,  410;  72,  88;  78,  121;  80,  60;  83,  5C2;  98, 
33;  106,  579;  113,  171;  114,  475;  124,  115;  128,  328; 
128,  584;    138,  158;    138,  447;    147,  494. 

Prac.  Act,  sec.  51.    En.  April  29,  1851.    Am'd.  1860,  299; 
1862,  562. 

Cal.  Rep.  Cit.     9,  423. 

Prac.  Act.  sec.  52.     En.  April  29,  1851.     Am'd.  1S60,  299; 
1862,  562. 

Cal.  Rep.  Cit.       9,  423. 

Prac.  Act,  sec.   55.    En.   April   29,  1851.     - 

Cal.  Rep.  Cit.    19,  34;   19,  39;   33,  211. 


IC3  VERIFICATION    OF   PLEADINGS.  §§  447-449 

Attorneys'  power  to  bind  client:    Ante,  sec.  283. 
Verifj'ing   accusation    for    disbarring   attoi'ney:    See    sec. 
291,   ante. 

§  447.  Copy  of  written  Instrument  contained  in  com- 
plaint admitted,  unless  answer  is  verified.  When  an  action 
is  brouglit  upon  a  written  instrument,  and  the  complaint 
contains  a  copy  of  such  instrument,  or  a  copy  is  annexed 
thei'eto,  the  genuineness  and  due  execution  of  such  instru- 
ment are  deemed  admitted,  unless  the  answer  denying  the 
same  be   verified.     En.   March  11,  1872. 

Cal.  Rep.  Cit.  71,  394;  73,  411;  74,  411;  80,  613;  82, 
505;  82,  506;  127.  29;  128,  328;  130,  103;  135,  677; 
143,  134;    1-lfi,  694. 

Prac.  Act,  sec.  53.     En.  April  29,  1851. 

Cal.  Rep.  CIt.     6,  7;   32,  88. 

§  448.  When  defense  is  founded  on  written  instrument 
set  out  in  answer,  its  execution  admitted,  unless  denied  by 
plaintiff,  under  oath.  When  the  defense  to  an  action  is 
founded  on  a  written  instrument,  and  a  copy  thereof  la 
contained  in  the  answer,  or  is  annexed  thereto,  the  gen- 
uineness and  due  execution  of  such  instrument  are  deemed 
admitted  unless  the  plaintiff  file  with  the  clerk,  within 
ten  days  after  receiving  a  copy  of  the  answer,  an  afli- 
davit  denying  the  same,  and  serve  a  copy  thereof  on  the 
defendant.    En.   March   11,  1872.    Am'd.   1873-4,  301. 

Cal.   Rep.   Cit.     60,  630;     66,   88;     73,   275;     80,  613;  104, 

581;     108,    361;  108,    362;     110.    200;     110,  203;  119, 

431;     119,    432;  122,    570;     122,    675;     125,  199;  128, 

424;    135,  677;  143,  134. 

Prac.  Act,  sec.  54.  En.  April  29,  1851.  Am'd.  1860,  299; 
1862,  562;  1866,  702. 

Cal.  Rep.  Clt.  49,  40. 

§  449,  Exceptions  to  rules  prescribed  by  two  preceding 
sections.  But  the  execution  of  the  instrument  mentioned 
in  the  two  preceding  sections  is  not  deemed  admitted  by 
a  failure  to  deny  the  same  under  oath,  if  the  party  desir- 
ing to  controvert  the  same  is,  upon  demand,  refused  an 
inspection  of  the  original.  Such  demand  must  be  in 
writing,  served  by  copy,  upon  the  adverse  party  or  his  at- 
torney, and  filed  with  the  papers  in  the  case.  En.  March 
11,  1872.     Am'd.   1880,   111. 

Inspection  of  writings,  order  for:    Post,  sec.  1000, 


IS  io2-m  CliNLJliAL    RLLEo    OK    PLKAUINQ.  IM 


CHAPTER  VII. 

GENERAL  RULES  OF  PLEADINO. 

5  452.  Pleadings   to  be  liberally   construed. 

§  453.  Sham   and   Irrelevant  answers,   etc.,   may   be  stricken   out. 

§  454.  How   to  state  an   account   In   pleadings. 

§  455.  Description  of  real  property  In  a  pleading. 

§  456.  Judgments,    how    pleaded. 

§  457.  Conditions  precedent,    how  to  be  pleaded. 

§  4.'>S.  Statute    of   limitations,    how    pleaded. 

§  459.  Private   statvites,    how  plea-ded. 

I  400.  Libel  and  slander,   how  stated  In  complaint. 

§  461.  Answer    In    such    cases. 

§  462.  Allegations   not   denied,    when    to   be   deemed    true.    When    to   be 

deemed    controverted. 

§  463.  A   material  allegation   defined. 

8  464.  Supplemental    complaint   and   answer. 

§  465.  Pleadings  subsequent   to  complaint   must   be   filed  and   served. 

§  452.  Pleadings  to  be  liberally  construed.  In  the  con- 
struction of  a  pleading,  for  the  purpose  of  determining  ita 
effect,  its  allegations  must  be  liberally  construqd,  with  a 
view  to  substantial  justice  between  the  parties.  En. 
March   11,  1872. 

Cal.  Rep.  Clt.     5G,  90;     88.  194;     103,  286;     105,  257;     130, 
496;     135,  48;     136,  71. 

Prac.  Act,  sec.  70.     En.  April  29,  1851. 

Cal.  Rep.  Cit.    28,  680;    28,  683;    32,  192;    39,  175. 

§  453.  Sham  and  Irrelevant  answers,  etc.,  may  be  strick- 
en out.  Sham  and  irrelevant  answers,  and  Irrelevant  and 
redundant  matter  inserted  in  a  pleading,  may  be  stricken 
out,  upon  such  terms  as  the  court  may.  In  its  discretion, 
impose.    En.   March  11,  1872. 

Cal.  Rep.   Cit.     53,   259;     57,  287;     65,   342;     98.   417;     98, 
418;    100,  433;    112,  173. 

•  Prac.  Act,  sec.  57.    En.  April  29,  1851. 

Cal.  Rep.  Cit.     8,  369;    30,  564. 

§  454.  How  to  state  an  account  in  pleadings.  It  Is  not 
necessary  for  a  party  to  set  forth  in  a  pleading  the  items 
of  an  account  therein  alleged,  but  he  must  deliver  to  the 
adverse  party,  within  five  days  after  a  demand  thereof  in 
writing,  a  copy  of  the  account,  or  be  precluded  from  giv- 
ing   evidence    thereof.     The    court    or    judge    thereof    may 


Igg  GENERAL   RULES    OF    PLEADING.  §§  435-457 

order  a  further  account  when  the  one  delivered  is  tco 
general  or  is  defective  in  any  particular.  En.  March  11, 
1872.     Am'd.   1880,   2. 

Cal  Ren  Cit.  70,  5C2;  74.  64;  74,  73;  74,  76;  74,  77; 
77  186  77  413;  82,  151;  84,  182;  84,  184;  90,  435; 
9g'  671-  97,  68;  103,  555;  104,  466;  110,  692;  114, 
38;    123,  87;     135,  407;    141,  601. 

Prac.   Act,  sec.  56.     En.   April  29,  1851. 

Cal.   Rep.   Cit.     17,   281. 

§  455.  Description  of  real  property  in  a  pleading.  In  an 
action  for  the  recovery  of  real  property,  it  must  be  de- 
scribed in  the  complaint  with  such  certainty  as  to  enable 
an  officer  upon  execution  to  identify  it.  En.  March  11, 
1872 

Prac.  Act,  sec.  58.    En.  April  29,  1851. 

Cal.   Rep.   Cit.     6,  156;     30,  565. 

§  456.     Judgments,    how    pleaded.     In    pleading   a   judg- 
ment   or  other  determination  of  a  court,  officer,  or  board, 
it  is 'not  necessary  to  state  the  facts  conferring  jurisdic- - 
tion    but  such  judgment  or  determination   may   be   stated 
to  have  been  duly  given  or  made.     If  such  allegation  be 
controverted,    the    party    pleading    m^st    establish    on    the 
trial  the  facts  conferring  jurisdiction.     En.  March  11,  187^. 
r-il     Ren     Cit      47.   512;     52,   410;    57,   391;     59,   451;    65, 
284      65    424;    71,  259;    77,  189;    90,  369;    92,  335;    93, 
110-   97    9-    99,  215;    118.  420;    118,  682;    121,  28;  124, 
18:'  125,  455;    127,  580;    128.  397;    138.  230;    139,  57; 
139,   60. 
Prac.  Act,  sec.  59.    En.  April  29,  1851. 
Cal.  Rep.  Cit.    35,  448;    38,  601;    93,  110. 
Judgment  as  an  estoppel:   See  post.  sec.  1908. 
§  457.     Conditions    precedent,    how    to    be    pleaded.    In 
pleading    the    performance    of   conditions   precedent   In   a 
contract,  it  is   not  necessary  to   state  the    facts    showing 
such  performance,  but  it  may  be  stated  generally  that  the 
party  dulv  performed  all  the  conditions  on  his  Part,  and 
If    such    allegations   be   controverted,    the    party    pleading 
must  establish,  on  the  trial,  the  facts  showing  such  per- 
formance.    En.   March   11,  1872. 

Cal.   Rep.   Cit.     66,   573;     75.   638;     76,   41;     78,   184;     78 
185;     87,   498;     89,  174;     123,   91;     133.  31;     139.   595; 
141.'  672. 
Prac.  Act.  sec.  60.    En.  April  29,  1851. 
Cal.  Rep.  Cit.     6.  263;    25,  303;    35,  448;    36,  177;    47,  431. 
Conditions  precedent:    See  Civ.   Code,  sees.  1436  et  seq. 


5§   15S-461  GENERAL   niTLES   OF   PLPADINa,  1« 

§  458.  Statute  of  limitations,  how  plearled.  In  ^.leading 
the  statute  of  limitations,  it  is  not  necessary  to  state  the 
faois  showing  the  defense,  but  it  may  be  stated  generally 
that  the  cause  of  action  is  barred  by  the  provisions  of  sec- 
tion    (giving  the  number  of  the  section  and  subdivi- 
sion thereof,  if  it  is  so  divided,  relied  upon)  of  the  Code 
of  Civil  Procedure;  and  if  such  allegation  be  controverted, 
the  party  pleading  must  establish,  on  the  trial,  the  facts 
showing  that  the  cause  of  action  is  so  barred.  En.  March 
11,  1872. 

Cal.  Rep.  Cit  56,  381;  68,  351;  68,  352;  72,  76;  72, 
600;  73,  421;  95,  194;  116,  59;  120,  162;  124,  449; 
135,  610. 

§  459.  Private  statutes,  how  pisaded.  Tn  pleading  a  pri- 
vate statute,  or  a  right  derived  the^^ifrom,  it  is  sufficient 
to  refer  to  such  statute  by  its  title  and  the  day  of  its  pas- 
sage.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     95,  315;    126.  229. 

Prac.  Act,  sec.  61.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     1,  174;    1,  177. 

§  460.  Libel  and  slander,  how  stated  in  complaint.  In 
an  action  for  libel  or  slander,  it  is  not  necessary  to  state 
in  the  complaint  any  extrinsic  facts  for  the  purpose  of 
showing  the  application  to  the  plaintiff  of  the  defamatory 
matter  out  of  which  the  cause  of  action  arose;  but  it  is 
sufficient  to  state,  generally,  that  the  same  was  published 
or  spoken  concerning  the  plaintiff;  and  if  such  allegation 
be  controverted,  the  plaintiff  must  establish,  on  the  trial, 
that  it  was  so  published  or  spoken.     En.  March  11,  18V2. 

Cal.  Rep.  Cit.  57,  578;  66,  678;  66,  679;  93,  64;  93,  67; 
93,  73;     122,  61;     132,  226. 

Prac.  Act,  sec.  62.    En.  April  29,  1851. 

Cal.  Rep.  Cit.     1,  159;    1,  196. 

Libel  and  slander:   See  Civ.  Code,  sees.  44  et  seq. 

§  461.  Answer  in  such  cnses.  In  the  actions  mentioned 
in  the  last  section,  the  defendant  may,  in  his  answer,  al- 
lege both  the  truth  of  the  matter  charged  as  defamatory, 
and  any  mitigating  circumstances,  to  reduce  the  amount  of 
damages;   and  whether  he  prove  the  justification  or  not,  he 


1«T  GENRRAL   RUT.ES   OP   PLEADING.  §§  4G2-464 

may   give   in   evrdence   the   mitigating  circumstances.    En. 
March  11,  1872. 

Cal.   Rep.   Cit.   82,  528;    107,  269. 

Prac.  Act,  sec.  63.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  1,  195;   9,  536;  47,  258. 

Libel  and  slander:  See  Civ.  Code.  sees.  44  et  seq. 

§  462.  Allegations  not  denied,  when  to  be  deemed  true. 
When  to  be  deemed  controverted.  Every  material  allega- 
tion of  the  complaint,  not  controverted  by  the  answer,  must, 
for  the  purposes  of  the  action,  be  taken  as  true;  the  state- 
ment of  any  new  matter  in  the  answer,  in  avoidance  or 
constituting  a  defense  or  counterclaim,  must,  on  the  trial, 
be  deemed  controverted  by  the  opposite  party.  En.  March 
11,   1872. 

Cal.  Rep.  Cit.  56,  373;  57,  589;  65,  422;  82,  95;  82,  573; 
84,  204;  88,  227;  89,  344;  92,  562;  94,  543;  97,  346;  104, 
581;  107,  4.'?2;  117,  240;  119,  431;  119,  432;  119,  433; 
119,  528;  119.  529;  119,  530;  120,  162;  122.  570;  122. 
571;  122,  675;  124,  215;  125,  489;  127,  541;  128,  425;  128, 
426;  131,  10;  132,  11;  132,  291;  140,  378;  141,  474; 
144,  112;  145,  440;  145,  629;  146,  388;  146,  620;  146,  723. 

Prac.  Act,  sec.  65.  En.  April  29,  1851.  Am'd.  1854,  60; 
1860,  300;  1861,  494;  1862,  563;  1866,  703. 

Cal.  Rep.  Cit.  6,  200;  7,  262;  9,  62;  8,  149;  14,  93;  14,  509; 
18,  314;  19.  34;  21,  350;  25,  197;  28,  244;  31,  195;  32, 
456;  35,  29;  38,  585;  39,  177;  39,  259. 

Cross-complaint  must  be  replied  to:   See  ante,  sec.  442. 
Answer:    See,  generally,   ante,  sec.  437. 
Material  allegations:    Post,  sec.  463. 

§  463.  A  material  allegation  defined.  A  material  allega- 
tion in  a  pleading  is  one  essential  to  the  claim  or  defense, 
and  which  could  not  be  stricken  from  the  pleading  without 
leaving  it  insulBcient.     En.  March   11,  1872. 

Cal.  Rep.  Cit.  84,  418. 

Prac.  Act,  sec.  66.     En.  April  29,  1851. 
Cal.  Rep.  Cit.  9,  500;  21,  3.50;  32,  456;  122,  164. 
Immaterial  allegations  need  not  be  answered:    See  sec. 
462. 

§  464.  Supplemental  complaint  and  answer.  The  plain- 
tiff and  defendant,  respectively,  may  be  allowed,  on  motion, 


§§   I'lo.  id  variance:— MISTAKES.  ICT 

to  make  a  supplemental  complaint  or  answer,  allc^'lnj;  facts 
material  to  the  case  occurring  after  the  former  complaint 
or  answer.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  54,  504;  60,  249;  98,  337;  102.  G23;   109.  121; 
127,    633. 

Prac.  Act.  sec.  67.  En.  April  29,  1851.  Am'd.  1854.  60; 
1860,    300;    1862.    563;    1866,    703. 

Cal.  Rep.  Cit.  1.  175;    12.  439;    25,  587;    28.  672;    33,  501; 
36,  110;    38.   541. 

Amendments  to  pleadings:    Post,  sees.  472.  473. 

§  465.  Pleadings  subsequent  to  complaint  must  be  filed 
and  served.  All  plcaflincs  sub-sonuent  to  the  complaint 
must  be  filod  with  the  clerk,  and  copies  thereof  served  upon 
the  adverse  party  or  his  attorney.  En.  March  11,  1872. 
Am'd.  1873-4,  301. 

Cal.  Rep.  Cit.  60,  205;  67,  432;  114,  475;  136.  303;  139,  717. 

Service  of  papers:   Sees.  1011  et  seq. 
Amendment    of    pleadings,    service   of:    Post,    sees.    472; 
ante,  432. 

Extending  time  to  serve  papers:   See  post,  sec.  1054. 


CHAPTER     VIII. 

VARIANCE— MISTAKES    IN    PLE.\DINGS    AND    AMENDMENTS. 

§  469.     Material    variances,    how    provided    for. 

§  470.     Immaterial    variance,    how    provided    for. 

§  471.     What   not    to   he   deemed   a   variance. 

§  472.    Amendments  of  course,   and   effect  of  demurrer. 

§  47J.  Amen-.iments  by  the  court.  Enlarging  time  to  plead  and  reliev- 
ing  from   judgment,    etc. 

§  474.     Suing  a  party  by  a  fictitious  name,    when  allowed. 

S  475.  No  error  or  defect  to  be  regarded  unless  It  aitects  substantial 
rights. 

5  476.    Time  to  amend  or  answer,  running  of. 

§  469.  Material  variances,  how  provided  for.  No  vari- 
ance between  the  allegation  in  a  pleading  and  the  proof  is 
to  be  deemed  material,  unless  it  has  actually  misled  the  ad- 
verse party  to  his  prejudice  in  maintaining  his  action  or 
defense  upon  the  merits.  Whenever  it  appears  that  a  party 
has  been  so  misled,  the  court  may  order  the  pleading  to  be 


,59  VARIANCE— MISTAKES.  §§  470-472 

amended,  upon  such  terms  as  may  be  juKt.    En.  March  11, 

1872.     Am'd.  1873-4,  302. 

Cal    Rep.  Cit.  54,  441;    59,  576;    65,  525;   72,  507;   74,  297 
75     362-    90     261;    94,   94;    95,    478;    98,   113;    102,   587 
114   348-  116,  3.32;  116,  380;  116,  559;  119,  380;  120,  69 
121*  172-  132,  401;  134,  418;  135,  48;  135,  87;  135,  569; 
ISg!  72;' 140,  320;  142,  144;  143,  134;   145,  494. 

Prac.  Act,  sec.  579.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  31.  386. 

Immaterial  variance:   Post,  sec.  470. 

Variance  and  failure  of  proof:   Post,  sec.  471. 

Immaterial    errors,   generally:   See   post,    sec.    475. 

§  470.  Immaterial  variance,  fiov/  provided  for.  Where 
the  variance  is  not  material,  as  provided  in  the  last  section, 
the  court  may  direct  the  fact  to  be  found  according  to  the 
evidence,  or  may  order  an  immediate  amendment,  without 
costs.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  57,  336;    59,  576;    65,  620;    75    362;    85    508; 
106   152-  116,  559;  121.  172;  121,  193;  130,  274;  132,  423; 
132',  427;   142,  115;   142,  144;  143,  134;   147,  719. 
Variance,  material:   Ante,  sec.  469;   fatal:  Post,  sec.  471. 

§  471.  What  not  to  be  deemed  a  variance.  Where,  how- 
ever the  allegation  of  the  claim  or  defense  to  which  the 
proof  is  directed,  is  unproved,  not  in  some  particular  or 
particulars  only,  but  in  its  general  scope  and  meaning,  it  is 
not  to  be  deemed  a  case  of  variance,  within  the  last  two 
sections,  but  a  failure  of  proof.    En.  March  11,  1872. 

Cal  Rep.  Cit.  59.  576;  69,  87;  121,  172;  132,  423;  132,  427; 
143,    134. 

Proof  generally:   Post,  sees.  1824,  1869. 

Proof,  failure  of— dismissal  for:   Post,  sec.  581,  subd.  5. 

§  472.  Amendments  of  course,  and  effect  of  demurrer. 
Any  pleading  may  be  amended  once  by  the  party  of  course, 
and  without  costs,  at  any  time  before  answer  or  demurrer 
filed  or  after  demurrer  and  before  the  trial  of  the  issue  or 
law  thereon,  by  filing  the  same  as  amended,  and  serving  a 
copy  on  the  adverse  party,  who  may  have  ten  days  there- 
after in  which  to  answer  or  demur  to  the  amended  pleading 
A  demurrer  is  not  waived  by  filing  an  answer  at  the  same 
time-  and  when  the  demurrer  to  a  complaint  is  overruled. 


S  473  VAHIANCE-MISTAKES.  17» 

and  thore  is  no  answer  filed,  the  court  may,  upon  surh 
terms  as  may  be  just,  allow  an  answer  to  be  filed.  If  a 
demurrer  to  the  answer  be  overruled,  the  facts  alleged  in 
the  answer  must  be  considered  as  denied  to  the  extent 
mentioned  in  section  462.  En.  March  11,  1872.  Am'd. 
1873-4,    302. 

■  Cal.  Rep.  Cit.  53,  294;  55,  516;  58,  94;  58,  97;  68,  616;  72, 
521;  84,  218;  86,  399;  86,  6110;  106,  60;  lOH,  72;  109, 
121;  119,  72;  119,  108;  119,  304;  119,  413;  132,  423;  132, 
424;  132,  427;  135,  480;  143,  134;  145,  212. 

Complaint,  amended — filing:  Sec.  432. 

Answer  no  waiver  of  demurrer:  Ante,  sec.  431. 

§  473.  Amendments  by  the  court.  Enlarging  time  to 
plead  and  relieving  from  judgments,  etc.  The  court  may, 
in  furtherance  of  justice,  and  on  such  terms  as  may  be 
proper,  allow  a  party  to  amend  any  pleading  or  proceeding 
by  adding  or  striking  out  the  name  of  any  party,  or  by 
correcting  a  mistake  in  the  name  of  a  party,  or  a  mistake 
in  any  other  respect;  and  may,  upon  like  terms,  enlarge  the 
time  for  answer  or  demurrer.  The  court*  may  likewise, 
in  its  discretion,  after  notice  to  the  adverse  party,  allow, 
upon  such  terms  as  may  be  just,  an  amendment  to  any 
pleading  or  proceeding  in  other  particulars;  and  may  upon 
like  terms  allow  an  answer  to  be  made  after  the  time 
limited  by  this  code;  and  may,  also,  upon  such  terms  as 
may  be  just,  relieve  a  party  or  his  legal  representative  from 
a  judgment,  order,  or  other  proceeding  taken  against  him 
through  his  mistake,  inadvertence,  surprise,  or  excusable 
neglect;  provided,  that  application  therefor  be  made  within 
a  reasonable  time,  but  in  no  case  exceeding  six  months 
after  such  judgment,  order,  or  proceeding  was  taken. 
When  from  any  cause  the  summons  in  an  action  has  not 
been  personally  served  on  the  defendant,  the  court  may 
allow,  on  such  terms  as  may  be  just,  such  defendant  or 
his  legal  representative,  at  any  time  within  one  year  after 
the  rendition  of  any  judgment  in  such  action,  to  answer 
to  the  merits  of  the  original  action.  V/hen,  in  an  action  to 
recover  the  possession  of  personal  property,  the  person 
making  anr  affidavit  did  not  truly  state  the  value  of  the 
property,  ?nd  the  officer  taking  the  property,  or  the  sure- 
ties on  any  bond  or  undertaking,  Is  sued  for  taking  the 
same,  the  officer  or  sureties  may  in  their  answer  set  up  the 
true  value  of  the  property,  and  that  the  person  in  whose 
behalf  said  affidavit  was  made  was  entitled  to  the  posses- 
sion of  the  same  when  said  affidavit  was  made,  or  that  the 


171  VARIANCE-MISTAKES.  §  473 

value  in  the  affidavit  stated  was  inserted  by  mistake,  tlie 
court  shall  disregard  the  value  as  stated  in  the  affidavit, 
and  give  judgment  according  to  the  right  of  possession  of 
said  property  at  the  time  the  affidavit  was  made.  En. 
March  11,  1872.    Am'd.  1873-4,  302;  1880,  2. 

Cal   Rep.  Cit.  48.  562:    51,119;    51,155;    56,250;    57,336; 
'go    229-    60.   250;'  60,   253;    60,  366;    61,   296;    61,  298; 
61    300;    61,301;    61,360;    62.282;    63,457;    63,477; 
63    478-    64    14;    64.    430;    65,   370;    65.   371;    65,   397; 
65'   495';    66,   337;    G7,   54;    67,   501;    68,   215;    68,   277; 
68    371-    68,   372;    68,   401;    68,   423;    68,   606;    70,   235; 
72'   218-    72    222;    72,   223;    72.   377;    73,   205;    73,   553; 
74'  343-    74    344;    74.   403;    74,   404;    74,  405;    77.  307; 
80'    200';    80',   333;    82,   509;    82,   510;    83,   228,   83,   459; 
84    111-    84    112;    84,    514;    84,    608;    85,   94;    85.   117; 
86'    60-'  86, '496;    86,   563;    86,   596;    87,   154;    89,   337; 
90'    19'    90.   564;    91.   322;    91.    587;    92,   201;    92,   350; 
92'    355;    93,    389;    93,    511;    93,    512;    94,    43;    94,    44; 
94'   545-    95     523;    96,    658;    96,    659;    97,   92.    97.    390; 
97'  391'    97,  392;    97,  393;    97,  516;    97,   629;    97,   631; 
97'   632-    98    250;    99,   625;    99,   626;    99,  627;    100,  92; 
101    34-'  101    575;  102,  603;  102,  616;  102,  617;  103,  453; 
103'  536-  10'4,  38;  108,  214;  108,  234;  109,  72;  1)9,  121; 
109'  686-  109   687;  109,  690;  110,  504;  112,  117;  113,  342; 
115'  101''  116,  51;  116,  93;  116.  135;  116.  283;  116,  381; 
lis'  97-118,  360;  118,  592;  119,  107;  119,  109;  119,  110; 
119'  3C6;  119,  589;  120,  37;  121,  416;  121.  418;  121.  419; 
122'  109-  122   208;  122,  209;  123,  171;  123,  253;  123.  2d4; 
123'  540'-  124    74-  124,  143;  124,  144;  125.  203;  126,  55; 
126'  37'>'  127' 170;  128,  245;  128,  393;  128,  561;  129,  15; 
129'  28^-'  1^9   311-  129,  312;  130,  390;  130,  514;  130,  667; 
13l'  6I7'-  132,  8;  132,  423;  132,  424;  132,  427;  134,  127; 
134'  198-'  134   383;  134,  384;  136,  390;  137.  139;  138,  26; 
138    2'00';    13'8,  300;    138,  642;    139,  591;  139,  592;  139, 
650';    139,  651;    140,  5;    140,  287;    140,  485;    140    674; 
142    426-    143,  17;    143,  134;    143,  632;    143,  633;  143, 
675'-    144    404-    145,  44;  145,  48;    145,  397;.  145,  562; 
145    597;    146,   214;     146,   247;     146,  260;     146,   498; 
147',   377;    147,   541. 
Prac.  Act,  sec.  68.    En.  April  29.  1851.    Am'd.  1853.  276; 
1860,  300;  1865-6,  843. 

cal.  Rep.  Cit.  1,  175;  1,  192;  3.  118;  3  134;  4,  281; 
6.  174;  7,  32;  7,  280;  7  281;^  %o^%^!i  S  9' 
19  708;  19,  709;  21,  273;  27,  333;  28  338  28  i^^. 
28.   652;    28,    CT2;    29,    74;    29,    423;    32.    121;    34.    2G, 


§5  474,  473  VARIANCE— MISTAKES.  VTt 

34.    80;    34,    172;    34,   241;    34,   239;    36,   289;  39.    108; 

39,   313;     40.   426;     41,   443;     43.    258;     43,  260;     47, 

527;     49.   307;     49.   308;     57,   336;     58,   97;  72,   222; 
74,  403;  85,  117;  97.  391;  99,  626;  139.  650. 

§  474.  Suing  a  party  by  a  fictitious  name,  when  al- 
lowed. When  the  plaintiff  is  iRnorant  of  the  name  of  a 
defendant,  he  must  state  that  fact  in  the  complaint,  and 
such  defendant  may  be  dosisnated  in  any  pleading  or  pro- 
ceeding by  any  name,  and  when  his  true  name  is  discovered, 
the  pleading  or  proceeding  must  be  amended  accordingly. 
Fn  March  11,  1872. 

Cal.  Rep.  Cit.  63,  119;  70,  25;  113.  500;  125,  104;  143,  134. 

Prac.  Act,  sec.  69.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  40,  490;  40,  491;  42,  578. 

§  475.  No  error  or  defect  to  be  regarded  unless  it  affects 
substantial  rights.  The  court  must,  in  every  stage  of  an 
action,  disregard  any  error,  improper  ruling,  instruction,  or 
defect,  in  the  pleadings  or  procee-dings  which,  In  the  opinion 
of  said  court,  does  not  affect  the  substantial  rights  of  the 
parties.  No  judgment,  decision,  or  decree  shall  be  reversed 
or  affected  by  reason  of  any  error,  ruling,  instruction,  or 
defect,  unless  It  shall  appear  from  the  record  that  such 
error,  ruling,  Instruction,  or  defect  was  prejudicial,  and 
also  that  by  reason  of  such  error,  ruling,  instruction,  or 
defect,  the  said  party  complaining  or  appealing  sustained 
and  suffered  substantial  injury,  and  that  a  different  result 
would  have  been  probable  if  such  error,  ruling,  instruction, 
or  defect  had  not  occurred  or  existed.  There  shall  be  no 
presumption  that  error  is  prejudicial,  or  that  injury  was 
done  if  error  is  shown.  En.  March  11,  1872.  Am'd.  1897, 
44. 

Cal.  Rep.  Cit.   48.  354;    52.  184;    57,  619;    61,  305;    63,  34 
64,   24;    65,   390;    66,    58;    67,    4;     68,     274;     68,     616 
71,    185;    71,   191;    72,   20;    72,   556;    73,   189;    /3,   553 
76,   280;    76,    632;    77,   94;    78,   492;    79,   208;    79,    586 
82,   337;    82,    424;    84,   201;    88.   452;    89,    506;    90.    94 
95    295;    96.  77;    96,  402;    97,  597;    101,  312;    106.  152 
111   686;  112,  227;  113.  536;  115,  277;  115.  372;  116,  600 
117,25;  121,172;  123,346;  126,325;    128,245;  128,268 
128   526;  129.  202;  129,  272;  130,  496;  132,  196;  133,  449 
135',  35;   135.  48;  135,  569;   136,  71;  138,  452;   140,  591 
145,  285;  145,  495;  147,  508. 
Prac.  Act.  sec.  71.     En.  April  29,  1851. 
Cal.  Rep.  Cit.  28,  265;  32,  14;  37,  336;  39,  175;  41.  317. 
Similar   provision  in  Pen.  Code,  sees.   1258,   1404. 


173  ARREST    AND    BAIL.  §  476 

§  476.  Time  to  amend  or  answer,  running  of.  When  a 
demurrer  to  any  pleading  is  sustained  or  overruled,  and 
time  to  amend  or  answer  is  given,  the  time  so  given  runs 
from  the  service  of  notice  of  the  decision  or  order.  En. 
Slats.  1873-4,  304. 

Cal.  Rep.  Cit.  52,  338;   58,  9G;    77,  151;    95,  3G7;    99,  176; 
116,  51;  129,  250. 

Time  to  answer:     Ante,  sees.  432,  472,  473. 
Notice,  service  of:     Sees.  1010  et  seq. 

TITLE    VII. 

OP  THE  PROVISIONAL  REMEDIES  IN  CIVIL  ACTIONS. 

Chapter  I.  Arrest  and  Bail,  §  §  478-504. 

II.  Claim     and     Delivery     of    Personal     Property, 
§§    509-521. 

ni.  Injunction,   §§    525-533. 

IT.  Attachment,    §§    537-559, 

V.  Receivers,    §§    564-569. 

VI.  Deposits  in  Court,  §§  572-574. 

CHAPTER  I. 

ARREST    AND    BAIL. 

(  478.  No  person  to  be  arrested  except  as  prescribed  by  this  code. 

§  479.  Cases  In   which   defendant  may   be  arrested. 

§  4S0.  Order    for    an  est,    by    whom    made. 

§  481.  Affidavit   to   obtain   order,    what   to   contain. 

§  482.  Security   by  plaintiff  before  order  of  arrest. 

§  4S3.  Order,    when   made  and   its   form. 

§  484.  Affidavit  and  order  to  be  delivered  to  the  sheriff,  and  copy  t» 
defendant. 

5  485.  Arrest,    how    made. 

§  486.  Defendant   to  be  discharged  on  bail   or  deposit. 

§  487.  Ball,    how   given. 

§  4S8.  Surrender  of  defendant. 

§  489.  Same. 

§  490.  Bail,    how   proceeded   against. 

§  491.  Bail,    how   exonerated. 

§  492.  Delivery  of  undertaking  to  plaintiff,  and  Its  acceptance  or  re- 
jection by  him. 

§  493.  Notice    of   justification.     New    undertaking,    If   other   ball. 

§  494.  Qualification   of   bail. 

§  495.  Justification    of   bail. 

§  496.  Allowance   of   bail. 

§  497.  Deposit  of  money   with   sheriff. 

§  488.  Payment   of   money   into   court   by   sheriff. 

§  499.  Substituting   bail    for   deposit. 

I  500.  Money   deposited,    how   applied   or  disposed   of. 

I  501.  Sheriff,    when    liable   as   bail,    and   his   discharge    from    liability. 

§  .t02.  Proceedings  on  judgment  against   sheriff. 

§  ;03.  Motion  to  vacate  order  of  arrest  or  reduce  bail.  Affidavits  on 
motion. 

^  504.  When   the  order  vacated   or  bail   reduced. 


§§  47S,  479  ARREST    AND    RAIL.  IW 

§  478.  No  person  to  be  arrested  except  as  prescribed  by 
this  code.  No  jxTson  can  be  arrtstod  in  a  civil  action, 
except   as   r.icscribed   in  this  code.     En.  March  11,  1S72. 

Cal.  Rep.  Cit.     49,  4GC;  101.  334;  120,  317. 

Prac.    Act,    sec.    72.     En.    April    29,    1851. 

Cal.  Rep.  Cit.  5,  283;  3G,  1G7. 

Exemption  from  arrest — Constitutional  provisions. — Im- 
prisonment for  debt,  except  for  fraud,  and  in  civil  actions 
for  torts,  except  in  cases  of  willful  injury  to  person  or 
property,  abolished:  Art.  1,  sec.  15.  .Members  of  legisla- 
ture exempted  from  arrest:  Art.  4,  sec.  11.  Electors  are 
privileged  on  election  day  while  in  attendance  at  an  elec- 
tion: Art.  2,  se<;.  2.  No  person  to  be  imprisoned  for  a 
militia  fine  in  time  of  peace:     Art.  1,  sec.  15. 

Cotle  provisions. — Electors  are  privileged  from  arrest  on 
election  days,  being  the  same  in  effe<>t  as  the  constitutional 
provision  above:  Pol.  Code,  sec.  10C9.  Persons  belonging 
to  the  military  forces,  while  in  attendance  for  military  duty, 
are  also  exempt  from  arrest  on  civil  process:  Pol.  Code,  sec. 
2021.  Females  privileged  from  arrest  in  civil  actions,  at 
least  in  justices'  courts:  Post,  sec.  861.  Witnesses  are 
likewise  privileged:  Post,  sec  2007.  Arrest  in  justices' 
court:     Post,  sees.  801  et  seq. 

§  479.  Cases  ip  which  defendant  may  be  arrested.  The 
defendant  may  be  arrested,  as  hereinafter  prescribed,  ia 
the  following  cases: 

1.  In  an  action  for  the  recovery  of  money  or  damages  on 
a  cause  of  action  arising  upon  contract,  express  or  implied, 
when  the  defendant  is  about  to  depart  from  the  state  with 
intent  to  defrau'd  his  creditors. 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or 
property  embezzled,  or  fraudulently  misapplied,  or  con- 
verted to  his  own  use,  by  a  public  officer,  or  an  officer  of 
a  corporation,  or  au  attorney,  factor,  broker,  agent,  or 
clerk,  in  the  course  of  his  employment  as  such,  or  by  any 
other  person  in  a  fiduciary  capacity;  or  for  misconduct  or 
neglect  in  office,  or  in  a  professional  employment,  or  for  a 
willful  violation  of  duty. 

3.  In  an  action  to  recover  the  possession  of  personal 
property  unjustly  detained,  when  the  property,  or  any  part 
thereof,  has  been  concealed,  removed,  or  disposed  of,  to  pre- 
vent its  being  found  or  taken  by  the  sheriff. 

4.  "When  the  defendant  has  been  guilty  of  a  fraud  in  con- 
tracting the  debt  or  incurring  the  obligation  for  which  the 
action  is  brought,  or  in  concealing  or  disposing  of  tho  i)rop- 
erty  for  the  taking,  detention,  or  conversion  of  which  the 
action  is  brought 


175  ARREST    AND    BAIL.  §§  iS0-4S3 

5.  When  the  defendant  has  removed  or  disposed  of  his 
property,  or  is  about  to  do  so,  with  intent  to  defraud  his 
creditors.     En.   March   11,   1872.     Am'd.   1873-4,   304. 

Cal.  Rep.  Cit.  120,  317;  130,  68;  138,  250.  Subd.  1—130, 
67.  Subd.  2—130,  650.  Subd.  3—130,  69.  Subd.  5— 
130,   67. 

Prac.  Act,  sec.  73.   En.  April  29,  1851. 

Cal.  Rer    Cit.  6,  240;   42,  20. 

§  480.  Order  for  arrest,  by  whom  made.  An  order  for 
the  arrest  of  the  defendant  must  be  obtained  from  a  judge 
of  the  court  in  which  the  action  is  brought.  En.  March  11, 
1872.    Am'd.  1880,  3. 

Cal.  Rep.  Cit.   130,   69. 

Prac.   Act,  sec.   74.    En.   April  29,   1851. 

Cal.  Rep.  Cit  1,  345;  1,  440. 

§  481.  Affidavit  to  obtain  order,  what  to  contain.  The 
order  may  be  made  whenever  it  appears  to  the  judge,  by 
the  affidavit  of  the  plaintiff,  or  some  other  person,  that  a 
sufficient  cause  of  action  exists,  and  that  the  case  is  one 
of  those  mentioned  in  section  four  hundred  and  seventy- 
nine.  The  affidavit  must  be  either  positive  or  upon  infor- 
mation and  belief,  and  when  upon  information  and  belief, 
it  must  state  the  facts  upon  which  the  information  and 
belief  are  founded.  If  an  order  of  arrest  be  made,  the  affi- 
davit must  be  filed  with  the  clerk  of  the  court.  En.  March 
11,  1872.    Am'd.  1873-4,  305. 

Cal.  Rep.  Cit.  59,  190;    120,  317;    120,  321;   130,  68. 

Prac.  Act,  sec.  75.     En.  April  29,  1851. 

§  482.  Security  by  plaintiff  before  order  of  arrest.  Be- 
fore making  the  order,  the  judge  must  require  a  written 
undertaking  on  the  part  of  the  plaintiff,  with  sureties  in  an 
amount  to  be  fixed  by  the  judge,  which  must  be  at  least 
five  hundred  dollars,  to  the  effect  that  the  plaintiff  will  pay 
all  costs  A  hich  may  be  adjudged  to  the  defendant,  and  all 
damages  which  he  may  sustain  '^y  reason  of  the  arrest,  if 
the  same  be  wrongful,  or  without  sufficient  cause,  not  ex- 
ceeding the  sum  specified  in  the  undertaking.  The  under- 
taking must  be  filed  with  the  clerk  of  the  court.  En.  March 
11,  1872.    Am'd.  1873-4,  305. 

Prac.  Act,  sec.  76.     En.  April  29,  185i. 


{S  48S-487  ARRKST   AND    BAH..  Mt 

Undertakings,  generally:  Ante,  sec.  105'.  Court  commis- 
sioner's power  to  take:   Ante,  sec.  259. 

§  483.  Order,  when  made  and  its  form.  Tlie  order  may 
be  made  at  the  time  of  the  issuing  of  the  summons,  or  any 
time  afterwards  before  judgment.  It  must  require  the 
sheriff  of  the  county  where  the  defendant  may  be  found, 
forthwith  to  arrest  him  and  hold  Im  to  bail  in  a  specified 
sum.  and  to  return  the  order  at  a  time  therein  mentioned, 
to  the  clerk  of  the  court  in  which  the  action  is  pending. 
En.   March  11,   1872. 

Cal.  Rep.  Cit.  59,   190;     130,  69. 

Prac.   Act,  sec.  77.     En.   April  29,   1851. 

§  484.  Affidavit  and  order  to  be  delivered  to  the  sheriff, 
and  copy  to  defendant.  The  order  of  arrest,  v.itli  a  copy 
of  the  affidavit  upon  which  it  Is  made,  mus'  be  delivered  to 
the  sheriff,  who,  upon  arresting  the  defendant,  must  de- 
liver to  him  a  copy  of  the  affidavit,  and  also,  if  desired,  a 
copy  of  the  order  of  arrest.     En.  March  11,  1872. 

Prac.  Act,  sec.  78.     En.  April  29,  1851. 

Sheriflf's  duties. — To  excuse  omission  by  sheriff,  direction 
by  party  or  attorney  must  be  in  writing:  Pol.  Code,  sec. 
4185. 

§  485.  Arrest,  how  made.  The  sheriff  must  execute  the 
order  by  arresting  the  defendant  and  keeping  him  in  cus- 
tody until  discharged  by  law.     En.  March  11,  1872. 

Prac.  Act,  sec.  79.     En.  April  29,  1851. 

"Production  of  process  upon  request:  Pol.  Code,  sec.  4188. 

§  486.     Defendant   to   be   discharged   on    bail    or  deposit. 

The  defendant,  at  any  time  before  execution,  must  be  dis- 
charged from  the  arrest,  either  upon  giving  bail  or  upon 
depositing  the  amount  mentioned  in  the  order  of  arrest. 
En.   March  11,   1872. 

Prac.  Act,  sec.  80.     En.  April  29,  1851. 

§  487.  Ball,  how  given.  The  defendant  may  give  ball 
bj'  causing  a  written  undertaKing  to  be  executed  by  tv/o  or 
more  sufficient  sureties,  to  the  effect  that  they  are  bound 
In  the  amount  mentioned  in  the  order  of  arrest,  that  the 


m  ARREST    AN    DBAIL.  §§  4SS-491 

defendant  will  at  all  times  render  himself  amenable  to  the 
process  of  Tae  court  during  the  pendency  of  the  action,  and 
to  such  as  may  be  issued  to  enZcrce  the  judgment  therein, 
or  that  they  will  pay  to  the  plaintiff  the  amount  of  any 
judgment  wiiich  may  be  recovered  in  the  action.  En. 
March  11,  1872. 

Cal.   Rep.   CIt.    130,    650. 

Prac.  Act,  sec.  81.     En.  April  29,  1851. 

Bail— Qualifications   of:   Post,   sees.   494,   1057. 

§  488.  Surrender  of  defendant.  At  any  time  before 
judgment,  or  within  ten  days  thereafter,  the  bail  may  sur- 
render the  defendant  in  their  exoneration;  or  he  may  sur- 
render himself  to  the  sheriff  of  the  county  where  he  was 
arrested.    En.  March  11,  1872. 

Prac.  Act,  sec.  82.     En.  April  29.  1851. 

§  489.  Same.  For  the  purpose  of  surrendering  the  de- 
fendant, the  bail,  at  any  time  or  place  before  they  are 
finally  charged,  may  themselves  arrest,  or,  by  a  written 
authority  indorsed  on  a  certified  copy  of  the  undertaking, 
may  empower  the  sheriff  to  do  so.  Upon  the  arrest  of 
defendant  by  the  sheriff,  or  upon  his  delivery  to  the  sheriff 
by  the  ball,  or  upon  his  own  surrender,  the  bail  are  ex- 
onerated, ii  such  arrest,  delivery,  or  surrender  take  place 
before  the  expiration  of  ten  days  after  judgment;  but  if 
Buch  arrest,  delivery,  or  surrender  be  not  made  within  ten 
days  after  judgment,  the  ball  are  finally  charged  on  their 
undertaking,  and  bound  to  pay  the  amount  of  the.  judg- 
ment within  ten  days  thereafter.    En.  March  11,  1872. 

Prac.  Act,  sec.  83.     En.  April  29,  1851. 

§  490.  Bail,  how  proceeded  against.  If  the  ball  neglect 
or  refuse  t  i  pay  the  judgment  within  ten  days  after  they 
are  finally  charged,  an  action  may  be  commenced  against 
such  bail  for  the  amount  of  the  original  judgment.  En. 
March  11,  1872. 

Prac.  Act,  sec.  84.     En.  April  29,  1851.     Am'd.  1854,  60. 

§  491.  Ball,  how  exonerated.  Tne  ball  are  exonerated 
by  the  death  of  the  defendant,  or  his  imprisonment  in  a 
state  prison,  or  bv  his  legal  discharge  from  the  o'ohgation 
to  render  himself  amenable  to  the  process.  En.  March  11, 
1872. 

Prac.  Act,  sec.  85.     En.  April  29,  1851. 

Code   ClvU   Proc— 12. 


SS  492-494  AKREST    AND    BAIU  178 

§  492.  Delivery  of  undertaking  to  plaintiff,  and  Its  ac- 
ceptance or  rejection  by  iiim.  "Within  the  time  limited  for 
that  purpose,  the  sheriff  must  file  the  order  of  arrest  In  the 
office  of  the  clerk  of  the  court  in  which  the  action  is  pend- 
ing, with  his  return  Indorsed  thereon,  together  with  a  copy 
of  the  undertaking  of  the  ball.  The  original  undertaking 
he  must  retain  in  his  possession  until  filed,  as  herein  pro- 
vided. The  plaintiff,  within  ten  days  thereafter,  may  serve 
upon  the  sheriff  a  notice  that  he  does  not  accept  the  ball, 
or  he  is  deemed  to  have  accepted  them,  and  the  sheriff 
is  exonerated  from  liability.  If  no  notice  be  served  within 
ten  days,  the  original  undertaking  must  be  filed  with  the 
clerk  of  the  court.     En.  March  11,  1872. 

Prac.  Act,  sec.  86.    En.  April  29,  1851. 

5  493.  Notice  of  Justification.  New  undertaking,  If 
other  bail.  Within  five  days  after  the  receipt  of  notice, 
the  sheriff  or  defendant  may  give  to  the  plaintiff,  or  his  at- 
torney, notice  of  the  justification  of  the  same,  or  other  bail 
(specifying  the  places  of  residence  and  occupations  of  the 
latter),  before  a  judge  of  the  court,  or  county  clerk,  at  a 
specified  time  and  place;  the  time  to  be  not  less  than  five 
nor  more  than  ten  days  thereafter,  except  by  consent  of 
parties.  In  case  other  bail  be  given,  there  must  be  a  new 
undertaking.     En.  March  11,  1872.     Am'd.  1880,  3. 

Prac.    Act,   sec.   87.    En.    April   29,   1851. 

Justification  of  bail:    See  sec.   495,   infra. 

§  494.  Qualification  of  ball.  The  qualifications  of  ball 
are  as  follows: 

1.  Each  of  them  must  be  a  resident  and  householder,  or 
freeholder,  within  the  state. 

2.  Each  must  be  worth  the  amount  specified  in  the 
order  of  the  arrest,  or  the  amount  to  which  the  order  is 
reduced,  as  provided  in  this  chapter,  over  and  above  all 
his  debts  and  liabilities,  exclusive  of  property  exempt  from 
execution;  but  the  judge  or  county  clerk,  on  justification, 
may  allow  more  than  two  sureties  to  justify  severally.  In 
amounts  less  than  that  expressed  in  the  order,  if  the  whole 
justification  be  equivalent  to  that  of  two  sufficient  bail. 
En.  March  11,  1872.     Am'd.  1873-4.  306. 

Prac.  Act,  sec.  88.     En.  April  29,  1851. 

Qualifications — of  bail:  Post,  sec.  1057. 


179  ARREST  AND  BAIL.  §§  495-498 

§  435.  Justification  of  bail.  For  the  purpose  of  justifi- 
cation, each  of  the  bail  must  attend  before  the  judge  or 
county  clerli,  at  the  time  and  place  mentioned  in  the  notice, 
and  may  be  examined  on  oath,  on  the  part  of  the  plaintiff, 
touching  his  suflBciency,  in  such  manner  as  the  judge  or 
clerk,  in  his  discretion,  may  think  proper.  The  examin- 
ation must  be  reduced  to  writing,  and  subscribed  by  the 
bail,  if  required  by  the  plaintiff.    En.  March  11,  1872. 

Prac.  Act,  sec.  89.     En.  April  29,  1851. 

Justification:     Ante,  sec.  259,  subd.  3. 

§  496.  Allowance  of  bail.  If  the  judge  or  clerk  find  the 
bail  sufficient,  he  must  annex  the  examination  to  the  un- 
dertaking, indorse  his  allowance  thereon,  and  cause  them 
to  be  filed,  and  the  sheriff  is  thereupon  exonerated  from 
liability.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  62,  544. 

Prac.  Act,  sec.  90.     En.  April  29,  1851. 

Court  commissioners — powers  as  to  bail:  Ante,  sec.  259, 
subd.  3. 

§  497.  Deposit  of  money  with  sheriff.  The  defendant 
may,  at  the  time  of  his  arrest,  instead  of  giving  bail,  deposit 
with  the  sheriff  the  amount  mentioned  in  the  order.  In 
case  the  amount  of  the  bail  be  reduced,  as  provided  in  this 
chapter,  the  defendant  may  deposit  such  amount  instead  of 
giving  bail.  In  either  case,  the  sheriff  must  give  the  de- 
fendant a  certificate  of  the  deposit  made,  and  the  defendant 
must  be  discharged  from  custody.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  51,  217. 

Prac.  Act,  sec.  91.     En.  April  29,  1851. 

§  498.     Payment   of   money    into   court   by   sheriff.     The 

sheriff  must,  immediately  after  the  deposit,  pay  the  same 
into  court,  and  take  from  the  clerk  receiving  the  same 
two  certificates  of  such  payment,  the  one  of  which  he  shall 
deliver  to  the  plaintiff's  attorney,  and  the  other  to  the 
defendant.  For  any  default  in  making  such  payment,  the 
same  proceedings  may  be  had  on  the  official  bond  of  the 
sheriff,  to  collect  the  sum  deposited,  as  in  other  cases  of 
delinquency.     En.  March  11,  1872. 

Prac.  Act,  sec.  92.    En.  April  29,  1851. 

Sheriff — Penalty  for  nonpayment:   Pol.  Code,  sec.  4181. 


§§  4M  r,0!  ARHEST    AND    BAIU  MO 

§  <99.  Substituting  bail  for  deposit.  If  money  Is  depos- 
ited, as  provided  in  the  two  last  sertions,  bail  may  be 
given,  and  may  justify  upon  notice,  at  any  time  before 
judgment;  and  on  the  filing  of  the  uii'dertaking  and  justi- 
fication with  the  clerk,  the  money  deposited  must  be  re- 
funded to  the  defendant.     En.  March  11,  1872. 

Prac.  Act,  sec.  93.    En.  April  29,  1S51. 


§  500.  Money  deposited,  how  applied  or  disposed  of. 
Whore  money  has  been  deposited,  if  it  remain  on  deposit  at 
the  time  of  the  recovery  of  a  judgment  in  favor  of  the 
plaintiff,  the  clerk  must,  under  the  direction  of  the  court, 
apply  the  same  in  satisfaction  thereof,  and  after  satisfying 
the  judgment,  refund  the  surplus,  if  any,  to  the  defend- 
ant. If  the  judgment  is  in  favor  of  the  defendant,  the  clerk 
must,  under  like  direction  of  the  court,  refund  to  him  the 
whole  sum  deposited  and  remaining  unapplied.  En.  March 
11,  1872. 

Prac.   Act,  sec.   94.     En.  April  29,   1851. 


§  501.  Sheriff,  when  liable  as  bail,  and  his  discharge 
from  liability.  If,  after  being  arrested,  the  defendant  es- 
cape or  is  rescued,  the  sheriff  is  liable  as  bail;  but  he  may 
discharge 'himself  from  such  liability  by  the  giving  bail  at 
any  time  before  judgment.     En.  March  11,  1872. 

Prac.  Act,  sec.  95.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  27,  494. 

Rescue,  liability  of  sheriff  permitting:  See  Pol.  Code, 
Bees.  4183,  4184. 

Escape,  liability  of  sheriff  permitting:  Bee  Pol.  Code, 
sees.  4182,  4184. 

§  502.  Proceedings  on  judgment  against  sheriff.  If  a 
judgment  is  recovered  against  the  sheriff,  upon  his  liability 
as  bail,  and  an  execution  thereon  is  returned  unsatisfied  in 
•whole  or  in  part,  the  same  proceedings  may  be  had  on  his 
official  bond  for  the  recovery  of  the  whole  or  any  deficiency, 
as  in  other  cases  of  delinquency.    En.  March  11,  1872. 

Prac  Act,  sec.  96.    En.  April  29,  1851. 


181  CLAIM   AND   DELIVERY.  §§  503-509 

§  503.  Motion  to  vacate  order  of  arrest  or  reduce  bail. 
Affidavits  on  nnotion.  A  defendant  arrested  may,  at  any- 
time before  the  trial  of  the  action,  or  if  there  be  no  trial, 
before  the  entry  of  judgment,  apply  to  the  judge  who  made 
the  order,  or  the  court  in  which  the  action  is  pending,  upon 
reasonable  notice,  to  vacate  the  order  of  arrest  or  to 
reduce  the  amount  of  bail.  If  the  application  be  made  upon 
afhdavits  on  the  part  of  the  defendant,  but  not  otherwise, 
the  plaintiff  may  oppose  the  same  by  affidavits,  or  other 
proofs,  in  addition  to  those  on  which  the  order  of  arrest 
was  made.    En.  March  11,  1872.    Am'd.  1873-4,  306. 

Prac.  Act,  sec.  97.    En.  April  29,  1851. 


§  504.  When  the  order  vacated  or  bail  reduced.  If, 
upon  such  application,  it  appears  that  there  was  not  suffi- 
cient cau-^-e  for  the  arrest,  the  order  must  be  vacated;  or  if  it 
appears  that  the  bail  was  fixed  too  high,  the  amount  must 
be  reduced.    En.  March  11,  1872. 

Prac.  Act,  sec.  98.    En.  April  29,  1851. 


CHAPTER  II. 

CLAIM  AND  DELIVERY  OF  PERSONAL  PROPERTY. 

5  509.  Delivery  of  personal  property,   when  It  may  be  claimed. 

§  510.  Affidavit   and   its   requisites. 

§  511.  Requisition   to  sheriff   to   take   and   deliver   the  property. 

§  612.  Security  on   the  part  of  the  plaintiff  and  proceedings  in  serving 

the   order. 

{  513.  Exception   to  sureties   and  proceedings   thereon,   or  on   failure   to 

except. 

§  514.  Defendant,    when    entitled    to    redelivery. 

§  515.  Justification    of   defendant's    sureties. 

§  516.  Qualification    of   sureties. 

§  517.  Property,    how   taken,    when   concealed   In    building   or   Inclosure. 

§  518.  Property,   how  kept. 

§  519.  Claim   of   property   by   third  person. 

§  520.  Notice  and  aflidavit,   when  and  where  to  be  filed. 

S  521.  Actions  on  unviertaking.     (Repealed.) 

§  509.     Delivery  of   personal    property,  when    it   may  be 
claimed.    The   plaintiff   in   an   action   to   recover   the   pos- 


5§  .-.10-512  CLAIM    AND    DKl.n'ERT.  182 

snssinn  of  personal  property  may,  at  the  time  of  issuing  the 
summons,  or  at  any  time  before  answer  claim  the  delivery 
of  surh  proprrty  to  him,  as  provided  in  this  chapter.  En. 
March  11,  1S72. 

Cal.  Rep.  Cit.  Gl,  97;   C6,  487;   88,  203;   94,  IOC;   130,  2C3; 
130,  264. 

Prac.  Act,  sec.  99.    En.  April  29,  1851. 
Judsroent:     Post,  sees.  627,  CG7. 

Verdict  in   actions   for   recovery   of  specific   personalty: 
Post,  sec.  627. 
Sections  made  applicable  to  justice's  court:    Post,  sec.  870. 

§  510.  Affidavit  and  its  requisites.  Where  a  delivery  is 
claimed,  an  affidavit  must  be  made  by  the  plaintiff,  or  by 
some  one  in  his  b-rhalf,  showing: 

1.  That  the  plaintiff  is  the  owner  of  the  property  claimed 
(particularly  describing  it),  or  is  entitled  to  the  possession 
thereof; 

2.  That  the  property  is  wrongfully  detained  by  the 
defendant; 

3.  The  alleged  cause  of  the  detention  thereof,  according 
to  his  best  knowledge,  information  and  belief; 

4.  That  it  has  not  been  taken  for  a  tax,  assessment,  or 
fine,  pursuant  to  a  statute;  or  seized  under  an  execution  or 
an  attachment  a'gainst  the  property  of  the  plaintiff;  or  if 
BO  seized,  that  it  is  by  statute  exempt  from  such  seizure; 

5.  The  actual  value  of  the  property.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     53,  743;    61,  97;    72,  331;    76,  289. 

Prac.  Act,  sec.  100.     En.  April  29,  1S51. 

Subdivision  5.  Value — incorrectly  stated  in  affidavit: 
Ante,  sec.  473. 

§  511.  Requisition  to  sheriff  to  take  and  deliver  the 
property.  The  plaintiff  or  his  attorney  may,  thereupon,  by 
an  indorsement  in  writing  upon  the  affidavit,  require  the 
sheriff  of  the  county  where  the  property  claimed  may  be, 
to  take  the  same  from  the  defendant.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  53,  743;  76,  289;  145,  543. 

Prac.  Act,  sec.  101.    En.  April  29,  1851.    Am'd.  1854,  60. 

Cal.  Rep.  Cit.  7,  571. 

§  512.  Security  on  the  part  of  the  plaintiff  and  proceed- 
ings in  serving  the  order.     Upon  a  receipt  of  the  affidavit 


183  CLAIM   AND  DELIVERY.  9  513 

and  notice  with  a  written  undortjiking,  executed  by  two 
or  more  sufficient  sureties,  approved  by  the  sheriff,  to  the 
effect  that  they  are  bound  to  the  defendant  in  double  the 
value  of  the  property,  as  stated  in  the  affidavit  for  the 
prosecution  of  the  action,  for  the  return  of  the  property  to 
the  defendants,  if  return  thereof  be  adjudged,  and  for  the 
payment  to  him  of  such  sum  as  may,  from  any  cause,  be 
recovered  against  the  plaintiff,  the  sheriff  must  forthwith 
take  the  property  described  in  the  affidavit,  if  it  be  in  the 
possession  of  the  defendant  or  his  agent,  and  retain  it  in 
his  custody.  He  must,  without  delay,  serve  on  the  defend- 
ant a  copy  of  the  affidavit,  notice,  and  undertaking,  by 
delivering  the  same  to  him  personally,  if  he  can  be  found, 
or  to  his  agent  from  whose  possession  the  property  is 
taken;  or  if  neither  can  be  found,  by  leaving  them  at  the 
usual  place  of  abode  of  either,  with  some  person  of  suit- 
able age  and  discretion,  or  if  neither  have  any  known  place 
of  abode,  by  putting  them  in  the  nearest  post-office,  directed 
to  the  defendant.  En.  March  11,  1872. 

Cal.  Rep.  Cit.  53,  743;  76,  289;  86,  648;  103,  310. 

Prac.  Act,  sec.  102.  En.  April  29,  1851.  Am'd.  1854,  61. 

Cal.  Rep.  Cit.  7,  571;  21,  279. 

Sheriff's  duties:  Pol.  Code,  sees.  4185,  4188,  and  gen- 
erally, sees.  4175-4193. 

Qualifications  of  sureties:  Ante,  sec.  494;  post,  sec.  1057. 

Return  of  property  to  defendant — verdict  for:  Sec.  627; 
judgment  for:   Post,  sees.  627,  667. 

Dismissal  of  action — Clerk  is  to  hand  undertaking  to 
defendant:   Post,  sec.  581,  subd.  1. 

Officer  executing  process  must  produce  same  on  request: 
Pol.  Code,  see.  4188. 

Value  stated  in  affidavit  is  not  conclusive  evidence 
against  sheriff  or  sureties:    Ante,  sec.   473. 

§  513.  Exception  to  sureties  and  proceedings  thereon, 
or  on  failure  to  except.  The  defendant  may,  within  two 
days  after  the  service  of  a  copy  of  the  affidavit  and  under- 
taking, give  notice  to  the  sheriff  that  he  excepts  to  the  suffi- 
ciency of  the  sureties.  If  he  fails  to  do  so,  he  is  deemed  to 
have  waived  all  objections  to  them.  When  the  defendant 
excepts,  the  sureties  must  justify  on  notice  in  like  man- 
ner as  upon  bail  on  arrest;   and  the  sheriff  is  responsible 


§;  :,14,  515  CLAIM    AND   DELn'ERY.  184 

for  the  sufficiency  of  the  sureties  until  the  objection  to 
them  is  cither  waived  or  until  they  justify.  If  the  defond- 
ant  except  to  the  sureties,  he  cannot  reclaim  the  property 
as  provided  in  the  next  section.    En,  March  11,  1872. 

Cal.  Rep.  Cit.  72,  331. 

Prac.   Act,  sec.  103.     En.   April  29,  1851. 

Justification  of  sureties:  See  ante,  sees.  494,  495;  post, 
sec.   1057. 

§  514.  Defendant,  when  entitled  to  redelivery.  At  any 
time  before  the  delivery  of  the  property  to  the  plaintiff, 
the  defendant  may,  if  he  do  not  except  to  the  sureties  of 
the  plaintiff,  require  the  return  thereof,  upon  giving  to  the 
sheriff  a  written  undertaking,  executed  by  two  or  more 
sufficient  sureties,  to  the  effect  that  they  are  bound  in 
double  the  value  of  the  property,  as  stated  in  the  affidavit 
of  the  plaintiff,  for  the  delivery  thereof  to  the  plaintiff, 
if  such  delivery  be  adjudged,  and  for  the  payment  to  him 
of  such  sum  as  may,  for  any  cause,  be  recovered  against 
the  defendant.  If  a  return  of  the  property  be  not  so  re- 
quired within  five  days  after  the  taking  and  service  of  no- 
tice to  the  defendant,  it  must  be  delivered  to  the  plaintiff, 
except  as  pr&vided  in  section  519.     En.   March  11,  1872. 

Cal.  Rep.  Cit.  53,  743;  65,  339;  72,  331;  84,  55;  84,  50;  88, 
205;   91,  291. 

Prac.  Act,  sec.  104.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  7,  570;   24,  149. 

As  to  undertakings  generally:   See  sec.  941. 

Qualifications  of  sureties:    Sec.   1057. 

§  515.  Justification  of  defendant's  sureties.  The  de- 
fendant's sureties,  upon  notice  to  the  plaintiff  of  not  less 
than  two  or  more  than  five  days,  must  justify  before  a 
judge  or  county  clerk,  in  the  same  manner  as  upon  bail 
on  arrest;  and  upon  such  justification  the  sheriff  must  de- 
liver the  property  to  the  defendant.  The  sheriff  is  responsi- 
ble for  the  defendant's  sureties  until  they  justify,  or  until 
the  justification  is  completed  or  waived,  and  may  retain 
the  property  until  that  time.  If  they,  or  others  in  their 
place,  fail  to  justify  at  the  time  and  place  appointed,  he 


185  CLAIM    AND    DELIVERT.  §§  516-519 

must  deliver  the  property  to  the  plaintiff.     En.  March  11, 
1872. 

Cal.  Rep.  Cit.  84,  56;   87,  348. 

Prac.  Act,  sec.  105.     En.  April  29,  1851. 

§  516.  Qualification  of  sureties.  The  qualification  of 
sureties  must  be  such  as  are  prescribed  by  this  code,  in  re- 
spect to  bail  upon  an  order  of  arrest.  En.  March  11,  1872. 

Cal.   Rep.  Cit.   64.  615. 

Prac.  Act,  sec.  106.     En.  April  29,  1851, 

Sureties — Qualifications  of:  Sec.  1057,  post,  and  ante, 
sees.  494,  495. 

§  517.  Property,  how  taken,  when  concealed  in  building 
or  inclosure.  If  the  property,  or  any  part  thereof  be  con- 
cealed in  a  building  or  inclosure,  the  sheriff  must  publicly 
demand  its  delivery.  If  it  be  not  delivered,  he  must  cause 
the  building  or  inclosure  to  be  broken  open,  and  take  the 
property  into  his  possession;  and,  if  necessary,  he  may  call 
to  his  aid  the  power  of  his  county.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  64,  615. 

Prac.  Act,  sec.  107.     En.  April  29,  1851. 

Duties  of  sheriff:  See  Pol.  Code,  sees.  4175  et  seq. 

§  518.  Property,  how  kept.  When  the  sheriff  has  taken 
property,  as  in  this  chapter  provided,  he  must  keep  it  in 
a  secure  place,  and  deliver  it  to  the  party  entitled  thereto, 
upon  receiving  his  fees  for  taking  and  his  necessary  ex- 
penses for  keeping  the  same.     En.   March  11,   1872. 

Prac.  Act,  sec.  108.     En.  April  29,  1851. 

§  519.  Claim  of  property  by  third  person.  If  the  prop- 
erty taken  be  claimed  by  any  other  person  than  the  de- 
fendant or  his  agent,  and  such  person  make  afBdavit  of  his 
title  thereto,  or  right  to  the  possession  thereof,  stating  the 
grounds  of  such  title  or  right,  and  serve  the  same  upon  the 
sheriff",  the  sheriff  is  not  bound  to  keep  the  property  or 
deliver  il;  to  the  plaintiff,  unless  the  plaintiff,  on  demand 
of  him  or  his  agent,  imdemnify  the  sheriff  against  such 
claim,  by  an  undertaking,  by  two  sufficient  sureties;  and 
no  claim  to  such  property  by  any  other  person  than  the 


§§  520-525  INJUNCTION.  IM 

defendant  or  his  agent  is  valid  against  the  sheriff  unless 
so  made.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  72,  331. 

Prac.  Act,  sec.  109.     En.   April  29,  1851. 

§  520.  Notice  and  affidavit,  when  and  where  to  be  filed. 
The  sheriff  must  file  the  notice,  undertaldn.c:,  and  afridavit, 
with  his  proceedings  thereon,  with  the  cleric  of  the  court 
in  which  the  action  is  pending,  within  twenty  days  after 
taking  the  property  mentioned  therein.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  101,  315;  130,  263. 

Prac.  Act,  sec.  110.     En.  April  29,  1851.    Am'd.  1854,  61. 

§  521.  Actions  on  undertaking.  (Repealed.)  En. 
March  11,  1872.     Rep.   1873-4,  30G. 


CHAPTER   III. 

INJUNCTION. 

§  525.    Injunction,  what  It  Is  and  who  may  grant  It. 

§  526.    When   It  may  be  granted. 

§  527.    At   what   time   It  may   be   granted,   and   what   Is   required   to  tib- 

taln   It. 
§  528.    Injunction  after  answer. 
§  529.     Security    upon    Injunction. 

§  530.    Order   to   show   cause    why   Injunction   should   not  be   granted. 
J  531.    Injunction    to    suspend    business    of    a   corporatloB,    how    and    by 

whom  granted. 
§  532.     Motion  to  vacate  or  modify  Injunction. 
§  633.    When   to  be  vacated   or  modlfle'd. 

§  525.  Injunction,  what  it  is  and  who  may  grant  it. 
An  injunction  is  a  writ  or  order  requiring  a  person  to  re- 
frain from  a  particular  act.  It  may  be  granted  by  the 
court  in  which  the  action  is  brought,  or  by  a  judge  thereof, 
and  when  made  by  a  judge,  it  may  be  enforced  as  an  order 
of  the  court.     En.  March  11,  1872;   1880,  3. 

Cal.  Rep.  Cit.     81,  150;    136,  121;    146,  32. 

Prac.   Act,  sec.  111.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  33,  389. 

Injunction — Disobedience  to  is  contempt:  Post,  sees. 
1209,  1210;     limitations,  how  affected  by:   Ante,  sec.  356; 


1S7  INJUNCTION.  S  526 

proceedings  to  obtain:  Post,  sees.  527  to  531;  vacating 
or  modifying:     Ante,  sees.  532,  533. 

A  seal  is  necessary  to  a  writ:     Sec.  152,  subd.  1. 

Courts  and  judges— Power  to  grant  injunction,  on  any- 
day:  Ante,  sees.  76,  134;  at  chambers:  Ante,  sec.  166; 
court  commissioners  not  empowered  to  issue:  Ante,  sec. 
258,  subd  1. 

§  526.  When  it  may  be  granted.  An  injunction  may  be 
granted  in  the  following  cases: 

1.  '^Tien  it  appears  by  the  complaint  that  th«  plaintiff 
is  entitled  to  the  relief  demanded,  and  such  relief,  or  any 
part  thereof,  consists  in  restraining  the  commission  or 
continuance  of  the  act  complained  of,  either  for  a  limited 
period  or  perpetually; 

2.  When  it  appears  by  the  complaint  or  affidavit  that 
the  commission  or  continuance  of  some  act  during  the  liti- 
gation would  produce  waste,  great  or  irreparable  injury  to 
the  plaintiff; 

3.  When  it  appears  during  the  litigation  that  the  de- 
fendant is  doing,  or  threatens,  or  is  about  to  do,  or  is 
procuring  or  suffering  to  be  done,  some  act  in  violation  of 
the  plaintiff's  rights,  respecting  the  subject  of  the  action, 
and  tending  to  render  the  judgment  ineffectual.  En.  March, 
11,  1S72. 

Cal.  Rep.  Cit.  53,  730;  64,  473;  113,  276;  114,  125;  136,  122. 
Subd.  2—118,  289. 

Prac.  Act,  sec.  112.     En.  April  29,  1851. 

When  granted  generally:   Civ.  Code,  sees.  3422  et  seq. 

Where  the  obligation  arises  from  a  trust:  Civ.  Code, 
sec.  3422. 

Illegal  payments  by  county,  enjoining:  See  Pol.  Code, 
sec.  4001. 

Enjoinin-g  nuisance:     Sec.  731,  post. 

Trademark,  use  of  enjoined:    Pol.  Code,  sec.  3199. 

Mortgage — Injunction  to  restrain  party  in  possession 
from  waste  during  foreclosure  suit:     Sec.  745. 

Disobeying  order  or  process,  contempt,  etc.:  Sees. 
1209,  1210. 

An  act  to  limit  the  meaning  of  the  word  conspiracy  and 
the  use  of  restraining  orders  and  injunctions   in  disputes 


§§  027-529  INJUNCTION.  U« 

between  employer  and  employee  was  approved  March  20, 
1903:  Stats  VJOS,  c.  235.  This  act  is  set  forth  in  Penal 
Code,  Appendix,  title  Conspiracy. 

§  527.  At  what  time  it  may  be  granted,  and  what  is 
required  to  obtain  it.  The  injunction  may  bo  Krantod  at 
the  time  of  issuing  the  summons  upon  the  complaint,  and 
at  any  time  afterward,  before  judgment,  upon  afiltlavits. 
The  complaint  in  the  one  case,  ami  the  affidavit  in  the 
other,  must  show  satisfactorily  that  .sufficient  grounds 
exist  tlif^refor.  No  injunction  can  be  granted  on  the  com- 
plaint unless  it  is  verified.  When  granted  on  the  complaint, 
a  copy  of  the  complaint  and  verification  attached  must  be 
served  with  the  injunction;  when  granted  upon  affidavit,  a 
copy  of  the  affidavit  must  be  served  with  the  injunction. 
No  injunction  granted  prior  to  the  actual  trial  of  the 
cause  wherein  it  is  g^ranted  shall  continue  in  force  for  a 
longer  period  than  twelve  months  from  the  time  such 
injunction  was  granted,  except  by  consent  of  the  parties, 
or  unless  the  cause  be  set  for  trial  upon  its  merits.  En. 
March  11,  1872.     Am'd.  1895,  51. 

Cal.  Rep.  Cit.  129,  CI;  132,  325. 
Prac.  Act,  sec.  113.    En.  April  29,  1851. 
Cal.  Rep.  Cit.  19,  34;  20,  82;  35,  58;  35,  59. 
Complaint — Verificatibn  of:      Ante,  sec.  446. 
Service  by  she. iff:     See  sheriff's  duties,  Pol.  Code,  sees. 
4175-4193. 

§  528.  Injunction  after  answer.  An  injunction  cannot 
be  allowed  after  the  defendant  has  answered,  unless  upon 
notice,  or  upon  an  order  to  show  cause;  but  in  such  case 
the  defendant  may  be  restrained  until  the  decision  of 
the  court  or  judge  granting  or  refusing  the  injunction.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  146,  33. 

Prac.  Act,  sec.  114.    En.  April  29,  1851. 

§  529.  Security  upon  injunction.  On  granting  an  in- 
junction, the  court  or  judge  must  require,  except  when  the 
people  of  the  state,  a  county,  or  rounicipal  corporation,  or  a 
married  woman  in  a  suit  against  her  husband,  is  a  party 
plaintiff,  a  written  undertaking  on  the  part  of  the  plaintiff, 


189  INJUNCTION.  {  630 

with  sTifficient  sureties,  to  the  effect  that  the  plaintiff  will 
pay  to  the  party  enjoined  such  damages,  not  exceeding 
an  amount  to  be  specified,  as  such  party  may  sustain  by 
reason  of  the  injunction,  if  the  court  finally  decide  that  the 
plaintiff  was  not  entitled  thereto.  Within  five  days  after 
the  service  of  the  injunction,  the  defendant  may  except 
to  the  sufficiency  of  the  sureties.  If  he  fails  to  do  so,  he 
Is  deemed  to  have  waived  all  objections  to  them.  When 
excepted  to,  the  plaintiff  sureties,  upon  notice  to  the 
defendant  of  not  less  than  two  nor  more  than  five  days, 
must  justify  before  a  judge  or  county  clerk  in  the  same 
manner  as  upon  ball  on  arrest,  and  upon  failure  to  justify, 
or  if  others  in  their  place  fall  to  justify  at  the  time  and 
place  appointed,  the  order  grantin'g  an  Injunction  shall  be 
dissolved.    En.  March  11,  1872.    Am'd.  1873-4,  405;  1880,  62. 

Oal.  Rep.  Clt.  54,  83;   64,  626;   77,  485;    92,  147;   97,  643; 
146,  32. 

Prac.  Act,  sec.  115.     En.  April  29,  1851. 

Undertakings,  returned  on  dismissal:  Post,  sec.  581, 
subd.  1. 

Sureties,  qualifications  of:  Post,  sec.  1057;  justification 
of:     Ante,  sec.  495. 

Court  commissioners,  power  to  take  bonds  and  under- 
takings, examine  suieties,  etc.:     Sec.  259,  subd.  3. 

§  530.  Order  to  show  cause  why  Injunction  should  not 
be  granted.  If  the  court  or  judge  deem  it  proper  that  the 
defendant,  or  any  of  several  defendants,  should  be  heard 
before  granting  the  injunction,  an  order  may  be  made 
requiring  cause  to  be  shown,  at  a  specified  time  and  place, 
why  the  injunction  should  not  be  granted;  and  the  defend- 
ant may,  in  the  mean  time,  be  restrained.  In  all  actions 
pending  or  which  may  be  hereafter  brought,  when  an 
Injunction  or  restraining  order  has  been  or  may  be  granted, 
or  applied  for,  to  prevent  the  diversion  pending  the 
litigation,  of  water  used  or  to  be  used  for  irri-gation  or 
domestic  purposes  only,  if  it  be  made  to  appear  to  the 
court  that  the  plaintiff  is  entitled  to  the  injunction,  but  that 
the  issuance  thereof  pending  the  litigation  will  entail  great 
damage  upon  the  defendant,  and  that  plaintiff  can  be  fully 
compensated  for  such  damages  as  he  may  suffer,  the  court 
mav  refuse  the  injunction  upon  the  defendant  giving  a 
bond,  such   as  Is   provided   for  In  section   532;    and  upon 


55  ^Sl.  f.^2  I^^MI'NCTION.  1» 

fhf>  trill  Hio  samo  proreetllnffs  shall  he  harl,  and  with 
thf"  samp  fffect  as  in  said  section  provitlod.  En.  March  11, 
1S72.     Am'd.  1887,  241. 

Cal.  Rep.  Clt.  G4,  297;   70,  8G;   75,  441;   101,  218;   110,  438; 
146,    38. 

Prac.  Act.  sec.  IIG.     En.  April  29,  1851. 

Cal.  Rop.  Clt.  15.  109. 

8  531.  Injunction  to  suspend  business  of  a  corporation, 
how  and  by  whom  granted.  An  Injuncllnn  to  suspend 
tlie  grnoral  and  ordinary  business  of  a  corporation  cannot 
1)0  grantod  except  b>  the  court  or  a  Judge  thereof;  nor  can 
It  be  granted  without  due  notice  of  the  application  thrrofor 
to  the  proper  ofUcers  or  mana^^ing  agent  of  the  corpor; - 
tlon,  except  when  the  people  of  this  state  are  a  party  to  the 
proceeding.     En.  March  11,  1872. 

Cal.  Rep.  Clt.  65,  189;   66.  103;  66,  314;   110,  145;   125.  299. 

Prao.  Act,  BBC.  117.     Kn.  April  29,  1851.     Am'd.  1866,  703. 

§  532.  Motion  to  vacate  or  modify  Injunction.  If  an 
Injunction  be  granted  without  notice,  the  dft'endant  at  any 
time  before  the  trial,  may  apply,  upon  reasonable  notice 
to  the  Judge  who  granted  the  Injunction,  or  to  the  court  In 
which  the  action  Is  brought,  to  dissolve  or  modify  the 
same.  The  application  may  be  made  upon  the  complaint 
and  the  affidavit  on  which  the  Injunction  was  granted,  or 
upon  affidavit  on  the  part  of  the  defendant,  with  or  without 
the  answer.  If  the  application  be  made  upon  affidavits  on 
the  part  of  the  defendant,  but  not  otherwise,  the  plaintiff 
may  oppose  the  same  by  affidavits  or  other  evidence  In 
a-ddition  to  those  on  which  the  Injunction  was  granted.  In 
all  actions  pending,  or  which  may  be  hereafter  brought, 
when  an  injunction  or  restraining  order  has  been  or  may 
be  granted  or  applied  for,  to  prevent  the  diversion,  pending 
the  litigation,  of  water  used  or  to  be  used  for  irrigation 
or  domestic  purposes  only,  if  it  be  made  to  appear  to  tho 
court  that  great  damage  will  be  suffered  by  the  defendant 
In  case  the  injunction  is  continued,  and  that  the  plaintiff 
can  be  fully  compensated  for  any  damages  he  may  suffer 
by  reason  of  the  continuance  of  the  acts  of  the  defendant 
"during  the  pendency  of  the  litigation,  the  court,  in  Its  dis- 
cretion, may  dissolve  or  modify  the  injunction,  upon  the 
defendant  ^ving  a  bond,  with  sureties  to  be  approved  by 


191 


INJUNCTION.  §  533 


the  judge,  and  in  snch  amount  as  may  be  fixed  by  the  court 
or  judge'  conditioned  that  the  defendant  will  pay  all 
damages  which  the  plaintiff  may  suffer  by  reason  of  the 
continuance  during  the  litigation  of  the  acts  complained  of. 
Upon  the  trial  the  amount  of  such  damages  shall  be 
ascertained,  and  In  case  Judgment  is  rendered  for  the 
plaintiff  the  amount  fixed  as  such  damages  shall  be  in- 
cluded in  the  judgment,  together  with  reasonable  attor- 
ney's fees  Upon  a  suit  brought  on  the  bond  the  amount 
of  "-damages  as  fixed  In  said  judgment  shall  be  conclusive 
upon  the  sureties.    En.  March  11,  1872.    Am'd.  1887,  241. 

Cal.  Rep.  CIt.  72.  271;  72,  275;  133.  337;  134.  377;  147.  724. 

Prac.  Act.  sec.  118.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  12,  448;  16,  85;  33,  390;  33.  391;  34,  34; 
35,  58;   35,  59. 

Vacating  orders  maxle  out  of  court:     Post,  sec.  937. 

§  533  When  to  be  vacated  or  modified.  If  upon  such 
application  it  satisfactorily  appear  that  there  Is  not  suf- 
ficient ground  for  the  Injunction,  It  must.be  dissolved;  or 
If  It  satisfactorily  appear  that  the  extent  of  the  injuncUoa 
is  too  great,  it  must  be  modified.     En.  March  11,  1871 

Cal.  Rep.  CIt.  103,  644. 

Prac.  Act,  sec.  119.    En.  April  29,  1851. 


I  63t  ATTACHMENT.  » 

CHAPTER  IV. 

ATTACHMICNT. 

I  637.    Attachment,    when   and   In    what  cases   may   Issae. 

I  538.     Aflldavit    for   attachment,    what   to   contain. 

{  &3'J.     I'tiilertaklnB    on    attachment. 

9  WO.    Writ,    to   whom   directed   and   what   to  state. 

I  Ml.    Shares  of  stock  and  debts  vlue  defendant,   how  attachc<l  and  Its- 
posed   of. 

{  542.    How   real  and   personal   property  shall  be  attached. 

g  W.J.    Attorney   to  give   written   Instructions  to  sheriff   what   to  atiacU. 

S  544.     Garnishment,    when   garnishee   liable   to   plaintiff. 

(  M6.     Citation   to   garnishee   to   appear   before  a  court  or  Judre. 

I  546.     Inventory,    how   made.     Party   refusing  to  give   memorandum   may 
be  compelled   to  pay  costs. 

S  547.    Perishable  property,   how  sold.    Accounts  without  suit   to  be  col- 
lected. 

S  548.    Property    attached    may   bo   sold    as    umler    execution.    If   the    in- 
terest  of   the   partus   require. 
1649.    When   property  claimed   by  a  third   party,   how  tried. 
560.    If   plaintiff   obtains  judgment,   how   satisfied. 
551.     When    there   remains  a   balance   duo,    how   collected. 
662.    When  suits  may  be  commenced  on  the  undertaking. 

I  5S3.     If    defendant    recover    Judgment,    what    the    sheriff    Is    to    deliver. 

I  554.     Proceedings    to    release    attachment,    before    whom    taken. 

I  555.    Attachment,    In    what  cases   It   may   be   released   and    upon    what 
terms. 

I  566.    When    a    motion    to    dl.'Miharfre    attachment    may    be    made,    and 
vpi'n    what    grounds. 

S  557.    Wh.il   motion   made   on   affidavit.    It  may   b«  opposed   by   afQdavlt. 

S  568.    When   writ  must   be   discharged. 

S  559.    When   writ   to  be   returned. 

§  537.  Attachment,  when  and  in  what  cases  may  issue. 
The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at 
any  time  afterward,  may  have  the  property  of  the  defend- 
ant attached,  as  security  for  the  satisfaction  of  any  judg- 
ment that  may  be  recovered,  unless  the  defendant  give  se- 
curity to  pay  such  judgment,  as  in  this  chapter  provided, 
in  the  following  cases: 

1.  In  an  action  upon  a  contract,  express  or  implied,  for 
the  direct  payment  of  money,  where  the  contract  is  made 
or  is  payable  in  this  state,  and  is  not  secured  by  any  mort- 
gage or  lien  upon  real  or  personal  property,  or  any  pledge 
of  personal  property,  or,  if  originally  so  secured,  such  se- 
curity has,  without  any  act  of  the  plaintiff,  or  the  person 
to  whom  the  security  was  given,  become  valueless. 

2.  In  an  action  upon  a  contract,  express  or  Implied, 
against  a  defendant  not  residing  in  this  state. 

3.  In  an  action  against  a  defendant,  not  residing  in  this 
state,  to  recover  a  sum  of  money  as  damages,  arising  from 
an  injury  to  property  in  this  state,  in  consequence  of  negll- 


193  ATTACHMENT.  9  538 

gence,  fraud,  or  other  wrong^ful  act.    En.  March  11,  1872. 
Am'd.'  1873-4,  306;   1905,  433. 

Cal    Rep.  Cit.   55,  501;    65,  3G1;    78,  39;    80,  107;   82,   602; 

82    032-   84,  157;   90,  102;   97,  S5;   97,  100;   97,  207;  99, 

13-    101.  106;    107,   485;    113,   477;    119,   195;    120,  410; 

■  122    148-   132    129;  139,  640;  142,  138;  146.  732.     Subd. 

1—137     648;    137,    649;    139,    639;    142,    137;    144,   788. 

Suhd.  '2—90,  102;    99,  12;   142,  137. 

Prac.  Act,  sec.  120.    En.  April  29,  1851.    Am'd.  1853,  276; 

1858,  152;   1860,  300. 

Cal.  Rep.  Cit.  1,  396;  6,  281;  8,  267;  8.  268;  32,  58;  33,  16G; 

35,  202;    37,  131;   45,  6. 
Garnishment:  Sees.  542,  543-545. 
Preventing  levy  by  •counter-bond:   See  sec.  540. 
Residence:   See  Pol.  Code,  sec.   52. 

§  538.  Affidavit  for  attachment,  what  to  contain.  The 
clerk  of  the  court  must  issue  the  writ  of  attachment,  upon 
receiving  an  affidavit  by  or  on  behalf  of  plaintiff,  showing: 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (speci- 
fying the  amount  of  such  indebtedness  over  and  above  all 
legal  set-offs  or  couuterclaims)  upon  a  contract,  express  or 
implied,  for  the  direct  payment  of  money,  and  that  such 
contract  was  made  or  is  payable  in  this  state,  and  that 
the  payment  of  the  same  has  not  been  secured  by  any  mort- 
gage or  lien  upon  real  or  personal  property,  or  any  pledge 
of  personal  property,  or,  if  originally  so  secured,  that  such 
security  has,  without  any  act  of  the  plaintiff,  or  the  person 
to  whom  the  security  was  given,  become  valueless;   or, 

2  That  the  defendant  is  indebted  to  the  plaintiff  (speci- 
fying the  amount  of  such  indebtedness  over  and  above  all 
legal  set-offs  or  counterclaims)  and  that  the  defendant  is  a 
nonresident  of  the  state;  or,  -     ,     4.  • 

3.  That  plaintiff's  cause  of  action  against  defendant  is 
one  to  recover  a  sum  of  money  as  damages  (specifying  the 
amount  thereof)  arising  from  an  injury  to  property  in  this 
state  in  consequence  of  the  negligence,  fraud,  or  other 
wrongful  act  of  defendant,  and  that  the  defendant  is  a  non- 
resident of  the  state;   and 

4  That  the  attachment  is  not  sought,  and  the  action  is 
not  prosecuted,  to  hinder,  delay,  or  defraud  any  creditor  of 
the  defendant.  En.  March  11,  1872.  Am'd.  1873-4,  307; 
1905,  434. 

Cal.  Rep.  Cit.  57,  290;   77,  213;   78,  177;   80    107;   84,  176; 
89,  94;    99,  13;   101,  106;   106,  68;   107.  485;   107.  486, 

Code  CivU  Proc— 13. 


I  631  ATTACHMTTNT.  VM 

108.  177;  120,  413;  120,  414;  132,  129;  137.  649.  Subd. 
1—120.  410;  122.  14S;  137.  419;  137.  G48.  Subd.  2— 
142,  138.     Subd.  3—142,   138. 

Prac.  Act,  sec.  121.  En.  April  29.  1851.  Am'd.  1853,  277; 
1858.  153;    1860,  301. 

Cal.  Rep.  Clt.  25,  207;  33,  167. 

Levy  without  process  a  misdemeanor:  See  Pen.  CJode, 
sec.   146. 

P^act  of  issuing  attachment  not  to  be  made  public:  See 
Pol.  Code,  sec.  1032. 

Aifldavit:  Post,  soc.  557. 

§  539.  Undertaking  on  attachment.  Before  issuing  the 
writ,  the  clerk  must  require  a  written  undertaking  on  the 
part  of  the  plaintiff  in  a  sum  not  less  than  two  hundred 
dollars  and  not  exceeding  the  amount  claimed  by  the 
plaintiff  with  suflicient  sureties,  to  the  effect  that  if  the 
defendant  recover  judgment,  the  plaintiff  will  pay  all  costs 
that  may  be  awarded  to  the  defendant,  and  all  damages 
which  he  may  sustain  by  reason  of  the  attachment,  not 
exceeding  the  sum  specified  in  the  undertaking.  Within 
five  days  after  service  of  the  summons  in  the  action,  the 
defendant  may  except  to  the  suflSciency  of  the  sureties.  If 
he  fails  to  do  so  he  is  deemed  to  have  waived  all  objections 
to  them.  When  excepted  to,  the  plaintiff's  sureties,  upon 
notice  to  the  defendant  of  not  less  than  two  nor  more  than 
five  days,  must  justify  before  a  judge  or  county  clerk,  in 
the  same  manner  as  upon  bail  on  arrest;  and  upon  failure 
to  justify,  or  if  others  in  their  place  fail  to  justify  at  the 
time  and  place  appointed,  the  clerk  or  judge  shall  issue  an 
order  vacating  the  writ  of  attachment  En.  March  11,  1872. 
Am'd.   1873-4,   308;    1873-4,   406. 

Cal.  Rep.  Cit.  54,  296;  54,  297;  77.  213;  97,  55;  99,  13;  122, 
151;   122.  208. 

Prac.  Act,  sec.  122.  En.  April  29,  1851.  Am'd.  1858,  153; 
1860,  301. 

Cal.  Rep.  Cit.  7.  518;   44,  170. 

There  was  another  section  539  adopted  at  the  same  ses- 
sion, amendments  1873-4,  p.  308,  but  was  repealed  by  the 
above:   Goodwin  v.  Buckley,  54  Cal.  295. 

Undertaking,   generally:    Sec.   581,   subd.   1. 

Sureties,  justification  of:  Ante,  sees.  259,  subd.  3,  495; 
qualifications  of:    Sec.   1057. 

Undertaking  to  discharge  attachment:    Post,  sec.  555. 


195  ATTACHMENT.  §§  540,  541 

Counter-undertaking  to  prevent  levy:   Post,  sec.  540. 
Dismissal  of  action  on — Clerk  is  to  hand  undertaking  to 
defendant:   Sec.  581,  subd.  1. 

§  540.  Writ,  to  whom  directed  and  what  to  state.  The 
writ  must  be  directed  to  the  sheriff  of  any  county  in  which 
property  of  such  defendant  may  be,  and  must  require  him 
to  attach  and  safely  keep  all  the  property  of  such  defend- 
ant within  his  county  not  exempt  from  execution,  or  so 
much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's 
demand,  the  amount  of  which  must  be  stated  in  conform- 
ity with  the  complaint,  unless  the  defendant  give  him 
security  by  the  undertaking  of  at  least  two  sufficient  sure- 
ties, in  an  amount  sufficient  to  satisfy  such  demand,  besides 
costs,  or  in  an  amount  equal  to  the  value  of  the  property 
which  has  been  or  is  about  to  be  attached;  in  which  case, 
to  take  such  undertaking.  Several  writs  may  be  issued  at 
the  same  time  to  the  sheriffs  of  different  counties.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  55,  377;  57,  159;  64,  406;  64,  407;  64,  408; 
65,  38;  83,  395;  86,  372;  88,  107;  95,  448;  95,  449;  97, 
98;  108,  177;  120,  413;  120,  414;  120,  621;  121,  421;  122, 
97;  122,  151;  123,  245;  132,  126;  132,  129;  133,  112;  137, 
648;   137,  649;    139,  413;    142,  139;    146,  779. 

Prac.  Act.  sec.  123.     En.  April  29,  1851.    Am'd.  1860,  315. 

Writ,  seal  necessary  to:  Ante,  sec.  153,  subd.  1. 

Sheriff,  duties  of,  excused  only  by  written  directions: 
Pol.  Code,  sec.  4185;  when  must  show  process:  Pol.  Code, 
sec.  4188. 

Exemptions  from  execution:  Post,  sec.  690. 

Bond  for  release  after  appearance:  Post,  sec.  555. 

§  541.     Shares   of   stock   and    debts   due   defendant,   how 

attached  and  disposed  of.  The  rights  or  shares  which  the 
defendant  may  have  in  the  stock  of  any  corporation  or  com- 
pany, together  with  the  interest  and  profit  thereon,  and  all 
debts  due  such  defendant,  and  all  other  property  in  this 
state  of  such  defendant  not  exempt  from  execution,  may 
be  attached,  and  if  judgment  be  recovered,  be  sold  to  sat- 
isfy the  judgment  and   execution.     En.  March  11,  1872. 

Cal.   Rep.   Cit.   57,  255;    144,   67. 

Prac.   Act,   sec.  124.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  13,  22;   34,  87. 

Stocks  or  shares,  how  attached:   Post,  sec.  542,  subd.  4. 


I  M)  ATT.\CliMIi:><T.  l\>* 

Debts   and   credita,   etc.,   how   attached:    Post,    sec.    512, 
Bubd.  5. 
Garnishment,  generally:   Post.  sees.  543-545. 

S  542.  How  real  and  personal  property  shall  be  attached. 
The  shoriff  to  whom  the  writ  is  directed  and  delivorpd, 
must  execute  the  same  without  delay,  and  if  the  undertak- 
ing mentioned  in  section  five  hundi-cd  and  forty  be  not 
given,  as  follows: 

1.  Real  property,  standing  upon  the  records  of  the 
county  in  the  name  of  the  defendant,  must  be  attached,  by 
filing  with  the  recorder  of  the  county  a  copy  of  the  writ, 
together  with  a  description  of  the  property  attached,  and  a 
notice  that  it  is  attached;  and  by  leaving  a  similar  copy  of 
the  writ,  description,  and  notice  with  an  occupant  of  the 
property,  if  there  is  one;  if  not,  then  by  posting  the  same  in 
a  con.spicuous  place  on  the  property  attached. 

2.  Real  property,  or  an  Interest  therein,  belonging  to 
the  defendant,  and  held  by  any  other  person,  or  standing 
on  the  records  of  the  county  in  the  name  of  any  other  per- 
son, must  be  attached,  by  filing  with  the  recorder  of  the 
county  a  copy  of  the  writ,  together  with  a  description  of 
the  property,  and  a  notice  that  such  real  property,  and  any 
Interest  of  the  defendant  therein,  held  by  or  standing  In  the 
name  of  .«;uch  other  person  (naming  him),  are  attached; 
end  by  leaving  with  the  occupant,  if  any,  and  with  such 
other  person,  or  his  agent,  if  known  within  the  county,  or 
at  the  residence  of  either,  if  within  the  county,  a  copy  of 
the  writ,  with  a  similar  description  and  notice.  If  there  la 
no  occupant  of  the  property,  a  copy  of  the  writ,  together 
•with  such  description  and  notice,  must  be  posted  in  a  con- 
spicuous place  upon  the  property.  The  recorder  must  in- 
dex such  attachment  when  filed,  in  the  names,  both  of  the 
defendant  and  of  the  person  by  whom  the  property  Is  held 
or  in  whose  name  it  stands  on  the  records. 

3.  Personal  property,  capable  of  manual  delivery,  must 
be  attached  by  taking  it  into  custody. 

4.  Stocks  or  shares,  or  interest  in  stocks  or  shares,  of 
any  corporation  or  company,  must  be  attached  by  leaving 
with  the  president,  or  other  head  of  the  same,  or  the  secre- 
tary, cashier,  or  other  managing  agent  thereof,  a  copy  of 
the  writ,  and  a  notice  stating  that  the  stock  or  interest  of 
the  defendant  is  attached,  in  pursuance  of  such  writ. 

5.  Debts  and  credits  and  other  personal  property,  not 
capable  of  manual  delivery,  must  be  attached  by  leaving 
with  the  person  owing  such  debts,  or  having  in  his  posses- 
sion, or  under  his  control,  such  credits  and  other  personal 


^  ATTACHMENT.  §§  &13,  544 

property,  or  with  his  agent,  a  copy  of  the  writ,  and  a  notice 
that  the  debts  owing  by  him  to  the  defendant,  or  the  cred- 
its and  other  personal  property  in  his  possession,  or  under 
his  control,  belonging  to  the  defendant,     are  attached  m 
pursuance  of  such  writ,  except  in  the  case  of  attachment  o£ 
growing  crops,  a  copy  of  the  writ,  together  with  a  descrip- 
tion of  the  property  attached,  and  a  notice  that  it  is  at- 
tached, shall   be  recorded  the  same  as  in  the   attachment 
of  real  property.    En.  March  11,  1872.    Am  d.  1903,  1G7. 
Cal.  Rep.  Cit.  54,  342;   57,  195;   57    256;   96.  267;   101    227; 
111   238-  119.  19S;  138.  194;  146,  742.     Subd.  1—66,  208, 
71    306-'  72    496;    80.  466;    88,  107;    99.  166;    99.  644; 
119     193      144,    788      Subd.     2-72,     497;     144.    788. 
sibd.  3-57.  255;  111.  381;  115.  213;   131.  89;  133.  317. 
Subd    4-122.  469;  133.  317.     Subd.  5-65.  303;  77,  655; 
90,  568;  95,  531;  103.  655;  111.  235;  121.  351. 
Prac.  Act.  sec.  125.     En.  April  29,  1851.    Am'd.  1862,  568. 
Cal   Rep.  Cit.  1.  96;  8,  26;  19.  44;  34,  87;  34.  607;  38.  153; 

38,  154;  43.  579. 
Attachment  lien,  officer's:     Civ.  Code,  f^; 3057;  leviable 
Interest,  in  mortgaged  property:     Civ.  Cjde.  sees.  2968-2970. 
fraudulent  transfers:     Civ.  Code.  sees.  1227.  3431.  3439-42. 

5  543.     Attorney  to  give  written   instructions  to  sheriff 
what  to  attach.     Upon    receiving    information    in    writing 
from  the  plaintiff  or  his  attorney,  that  any  Person  has  in 
MHossession  or  under  his  control  any  credits  or  other  per- 
sonaTproperty  belonging  to  the  defendant,  or  is  owing  any 
S  to  tSe  defendant,  the  sheriff  must  serve  up<,n  such  per- 
son a  copy  of  the  writ  and  a  notice  that  such  credits    or 
Ser  Property,  or  debts,  as  the  ca^e  may  be   are  attached, 
in  pursuance  of  such  writ.     En.  March  11.  187J. 
Cal.  Rep.  Cit.  90,  568;    108,  264. 
Prac.  Act.  sec.  126.    En.  April  29.  1851. 
Cal.  Rep.  Cit.  34.  298;  34.  299;  38,  153. 
§  544.     Garnishment,  when  garnishee  liable  to  Plalntiff 
All  persons  having  in  their  possession  or  under    i^eir  con- 
frol  anTcredits  or  other  personal  property  belonging  to  the 
deienJaMor  owin^.  any  debts  to  the  defendan  .  at  the  time 
of  service  upon   them   of  a  copy   of   the  writ  and^otwe 
as  provided  in  the  last  two  sections,  shall  be,  unless  sum 
nronertv  be  delivered  up  or  transferred,  or  ^ch  debts  be 
pSHoVe  sheriff,  liable  to  the  plaintiff  for  the  amount  of 


5§  &45,  51«  ATTACHMKNT.  138 

such  credits,  property,  or  debts,  until  the  attichmrnt  be 
discharged,  or  any  jud^raent  recovered  by  him  be  satis- 
fied.    Bn.  March  11,  1S72. 

Cal.  Rep.  Cit.  88.  52G;  90,  5C8;   109.  83;  llC,  372;   IIG,  374; 
128.  1C5;  128,  ICC;  128,  1G7;  138,  185;  138,  194;  144,  486. 

Prac.  Act,  sec.  127.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  1,  96;   9,  2G6;   3S,  C12;    1-14,  486. 

Similar  provision  as  to  execution:     Post,  sec.  716. 

§  545.  Citation  to  garnishee  to  appear  before  a  court  or 
Judge.  Any  person  owing  debts  to  tlie  defendant,  or  hav- 
ing in  his  possession  or  under  his  control  any  credits  or 
other  personal  property  belonging  to  the  derendant,  may 
be  required  to  attend  before  the  court  or  judge,  or  a  referee 
appointed  by  the  court  or  judge,  and  be  examined  on  oath 
respecting  the  same.  The  defendant  may  also  be  required 
to  attend,  for  the  purpose  of  giving  information  respect- 
ing hi.s  property,  and  may  be  examined  on  oath.  The  court 
or  judge  may,  after  such  examination,  order  personal  prop- 
erty, capable  of  manual  delivery,  to  be  delivered  to  the 
sheriff  on  such  terms  as  may  be  just,  having  reference  to 
any  liens  thereon  or  claims  asrainst  the  same,  and  a  memo- 
randum to  be  given  of  all  other  personal  property,  con- 
taining the  amount  and  description  thereof.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.  51,  317;  90,  5G8;  128,  165;  128,  ICG;  128,  167; 
133,  317. 

Prac.  Act,  sec.  128.     En.  April  29,  1851.     Am'd.  1855,  197. 

Cal.  Rep.  Cit.  1,  9G;  9,  2G5;  9,  2G6;  34,  607. 

Compare,  proceedings  supplementary  to  execution:  Post, 
sees.  714-721. 

§  546.  Inventory,  how  made.  Party  refusing  to  give 
memorandum  may  be  compelled  to  pay  costs.  The  sheriff 
must  make  a  full  inventory  of  the  property  attached,  and 
return  the  same  with  the  writ.  To  enable  him  to  make 
such  return  as  to  debts  and  credits  attached,  he  must  re- 
quest, at  the  time  of  service,  the  party  owing  the  debt  or 
having  the  credit  to  give  him  a  memorandum,  stating  the 
amount  and  description  of  each;  and  if  such  memorandum 
be  refused,  he  must  return  the  fact  of  refusal  with  the  writ. 
The   party   refusing   to   give   the    memorandum     may     be 


199 


ATTACHMENT,  5§  547-549 

required  to  pay  the  costs  of  any  proceedings  taken  for  the 
purpose  of  obtaining  information  respecting  the  amounts 
and  description  of  such  debt  or  credit.     En.  March  11.  1872. 

Cal.  Rep.  Cit.     58,  356;    90,  568;    128,  lb6;    128,  167. 
Prac.  Act,  sec.  129.    En.  April  29,  1851. 
Return  of  writ,  -generally:     See  infra,  sec.  559. 

8  547.  Perishable  property,  how  sold.  Accounts  with- 
out suit  to  be  collected.  If  any  of  the  property  attached  be 
perishable,  the  sheriff  must  sell  the  same  in  the  manner  in 
which  such  property  is  sold  on  execution  The  proceeds 
Tnd  other  property  attached  by  him  must  be  retained  by 
h?m  ?o  answer  any  judgment  that  may  be  recovered  in  the 
acUon,  unless  sooner  subjected  to  execution  upon  another 
tuSent  recovered  previous  to  the  issuing  of  the  attech- 
meST  Debts  and  credits  attached  may  be  collected  by 
Km  if  the  same  can  be  done  without  suit.  The  sher.rs 
receipt  is  a  sufficient  discharge  for  the  amount  paid.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  135,  98;  135,  99. 

Prac.  Act,  sec.  130.    En.  April  29,  185L 

Cal.  Rep.  Cit.    1,  96;    9.  551. 

8  548  Property  attached  may  be  sold  as  under  execu- 
tion, If  the  interLt  of  the  parties  ;eq""-«- .^^^^/J^If 
nrooerty  has  been  taken  by  an  officer  un-der  a  writ  of  attach- 
ment and  ft  is  made  to  appear  satisfactorily  to  the  court 
S-  a  judge  thereof,  that  the  interest  of  the  parties  to  the 
action  ^v^ll  be  subserved  by  a  sale  thereof,  the  court  or 
Se  may  order  such  property  to  be  sold  in  the  Bame  man. 
ner  L  propertv  is  sold  under  an  execution,  and  the  pro- 
cSds  to  be  deposited  in  the  court,  to  abide  the  Dudgment 
f^the  action  Such  order  can  be  made  only  upon  notice 
In  the  Idve^se  party  or  his  attorney,  in  case  such  party 
has  been  rersonSlly'served  with  a  summons  in  the  action. 
En.  March  11,  1^72.  Am'd.  1880,  4. 
Cal.  Rep,  Cit.   135.   99. 

8  549  When  property  claimed  by  a  third  party,  how 
trild'  if  Ty  pei^on'al  property  attached  be  claimed^^^^^^ 
third  person  as  his  property,  the  same  rules  shall  prevail  as 


5  5  •-».  551  ATTAOIMENT.  Ml 

to  the  contents  and  makin.?  of  said  claim,  and  aa  to  the 
holding  of  said  property,  as  In  case  of  a  claim  afttr  levy 
upon  execution,  as  provided  for  in  se<'tion  six  hun«.lred  and 
eii^hty-nine  of  the  Code  of  Civil  Procedure.  En.  March  11, 
1872.     Am'd.  1891.  20. 

Cal.  Rep.  Cit  97.  483:  117,  40;  122,  334;  126,  42;  142.  459. 

Prac.  Act,  sec.  131.    En.  April  29.  1851. 

Sureties  on  indemnity. — If  sheriff  gives  to  sureties  no- 
tice of  action  brought  against  him,  the  sureties  are  liable 
on  the  Judgment:    Post,  sec.  1055. 

S  550.     If    plaintiff   obtains   judgment,    how   satisfied.     If 

judgment  be  recoveicd  by  the  plaintiff,  the  sheriff  must 
satisfy  the  same  out  of  the  property  attached  by  him 
•which  has  not  been  delivered  to  the  defendant  or  a  claim- 
ant as  hereinbefore  provided,  or  subjected  to  execution  on 
another  judgment,  recovered  previous  to  the  issuing  of  the 
attachment.  If  it  be  suflBcient  for  that  purpose: 

1.  By  paying  to  the  plaintiff  the  proceeds  of  all  .««ales 
of  perishable  property  sold  by  him,  or  of  any  debts  or 
credits  collected  by  him,  or  so  much  as  shall  be  necessary 
to  satisfy  the  judgment; 

2.  If  any  balance  remain  due.  and  an  execution  shall 
have  been  issued  on  the  judgment,  he  must  sell  under  the 
execution  so  much  of  the  property,  real  or  personal,  as  may 
be  necessary  to  satisfy  the  balance,  if  enough  for  that  pur- 
pose remain  in  his  hands.  Notices  of  the  sales  must  be 
given,  and  the  sales  conducted  as  in  other  cases  of  sales 
on  execution.    En.  M?rch  11,  1872. 

Cal.  Rep.  Cit  72,  70;  122,  471. 

Prac.  Act,  sec.  132.    En.  April  29,  185L 

Cal.  Rep.  Cit.  9,  551. 

Disposition  of  proceeds. — Action  against  sberifT  for 
amount,  and  twenty-five  per  cent  damages,  and  ten  per 
cent  per  month  interest,  if  he  neglect  to  pay  over  moneys: 
Pol.  Code,  sec.  4181;  peference,  claim  for  labor,  wages,  etc, 
sec.  1206. 

Sales  on  execution:     Post,  sees.  692-709. 

§  551.  When  there  remains  a  balance  due,  how  col- 
lected. If,  after  selling  all  the  property  attached  by  him 
remaining  in  his  hands,  and  applying  the  proceeds,  to- 
gether with  the  proceeds  of  any  debts  or  credits  collected 


aOt  ATTACHMEXT.  §J  553-55* 

by  him,  deducting  his  fees,  to  the  payment  of  the  judgment, 
any  balance  shall  remain  due,  the  sheriff  must  proceed  to 
collect  such  balance  as  upon  an  execution  in  other  cases. 
Whenever  the  judgment  shall  have  been  paid,  the  sheriff, 
upon  reasonable  demand,  must  deliver  over  to  the  defend- 
ant the  attached  property  remaining  in  his  hands,  and  any 
proceeds  of  the  property  attached  unapplied  on  the  judg- 
ment.    En.  March  11,  1872. 

Prac.  Act,  sec.   133.     En.  April  29,  185L 

Cal.  Rep.  Cit.  45.  616. 

Proceedings  supplementary  to  execution:  Post,  sees.  714 
et  seq. 

§  552.  When  suits  may  be  commenced  on  the  undertak- 
ing. If  the  execution  be  returned  unsatisfied  in  whole  or 
in  part,  the  plaintiff  may  prosecute  any  undertaking  given 
pursuant  to  section  five  hundred  and  forty,  or  section  five 
hundred  and  fifty-five,  or  he  may  proceed  as  in  other  cases 
upon  the  return  of  an  execution.  En.  March  11,  1872. 

Cal.  Rep.  Cit  57,  159;   71,  306;   79,  559;   95,  448;   95,  449; 
123,  245. 

Prac.  Act,  sec.  134.    En.  April  29,  1851. 

§  553.  If  defendant  recover  judgment,  what  the  sheriff 
Is  to  deliver.  If  the  defendant  recover  judgment  against 
the  plaintiff,  any  undertaking  received  in  the  action,  all  the 
proceeds  of  sales  and  money  collected  by  the  sheriff,  and 
all  the  property  attached  remaining  in  the  sheriff's  hands, 
must  be  delivered  to  the  defendant  or  his  agent  The  order 
of  attachment  shall  be  discharged,  and  the  property  re- 
leased therefrom.     En.  March  11,   1872. 

Cal.  Rep.  at.  76,  564;  76,  565;  123,  94;  123,  96;  133,  112; 
133,  113. 

Prac.  Act  sec.  135.     En.  April  29,  1851. 

§  554.  Proceedings  to  release  attachment  before  whom 
taken.  Whenever  the  defendant  has  appeared  in  the  ac- 
tion he  may,  upon  reasonable  notice  to  the  plaintiff,  apply 
to  the  court  in  which  the  action  is  pending,  or  to  the  judge 
thereof,  for  an  order  to  discharge  the  attachment,  wholly 
or  in  part;  and  upon  the  execution  of  the  undertaking  men- 
tioned in  the  next  section,  an  order  may  be  made,  releasing 


§  535  ATTACH MK NT.  «W 

from  the  operation  of  the  attnchmont  any  or  all  of  tho  prop- 
erty attached;  and  all  of  the  property  so  released,  and  all 
of  the  proceeds  of  the  sales  thereof,  must  be  delivered  to 
tlio  defendant,  upon  the  justification  of  the  sureties  on  the 
undertaking,  if  required  by  the  plaintiff.  En.  March  11, 
1872.     Am'd.   1S80,   4. 

Cal.  Rep.  CIt.  63.  540;  64.  407;  72,  Bfrl;  79.  (558;  86.  372; 
95,  448;  119.  49;  123,  94;  123.  242;  123.  244;  123.  245; 
134.   5U;    134,  512;    139.  411;    139.  413. 

rrac.  Act,  8CC.  136.  En.  April  29.  1851.  Am'd.  1854,  61; 
1863.  305. 

Cal.  Rep.  Clt.  1.  337;  28.  651;  31.  270. 

Appearance:  Post,  sec.  1014. 

5  555.  Attachment,  In  what  cases  It  may  be  released 
and  upon  what  terms.  Before  making  such  order,  tho 
court  or  judge  must  require  an  undertaking  on  behalf  of 
the  defendant,  by  at  least  two  sureties,  residents  and  free- 
holders, or  householders,  in  the  state,  to  the  effect  that  in 
case  the  plaintiff  recover  judgment  In  the  action,  defendant 
•will,  on  demand,  redeliver  the  attached  property  so  re- 
leased to  the  proper  ofTlcer,  to  be  applied  to  the  payment  of 
the  judgment,  or  in  default  thereof,  that  the  defendant  and 
sureties  will,  on  demand,  pay  to  the  plaintiff  the  full  value 
of  the  property  released.  The  court  or  judge  making  such 
order  may  fix  the  sum  for  which  the  undertaking  must  be 
executed,  and  if  necessary  in  fixing  such  sum  to  know  the 
value  of  the  property  released,  the  same  may  be  appraised 
by  one  or  more  disinterested  persons,  to  be  appointed  for 
that  purpose.  The  sureties  may  be  required  to  justify  be- 
fore the  court  or  judge,  and  the  property  attached  cannot 
be  released  from  the  attachment  without  their  justifica- 
tion, if  the  same  be  required.  En.  March  11,  1872.  Am'd. 
1873-4.   308. 

Cal.  Rep.  Cit.  54.  504;  57,  159;   58,  344;  63,  540;    72,  554; 

78,448;  79.  558;    79,  560;    86,  372;    95,  448;    95,  449; 

119,  49;     119.  51;    123,  94;     123,  242;    123,  245;  134, 
511;     139,    413. 

Prac.  Act.  sec.  137.  En.  April  29,  1851.  Am'd.  1854,  61; 
1863,  305;  1864,  44. 

Cal.  Rep.  Cit.  1,  334;  1,  335;  11,  276;  22,  634. 

Undertaking  to  prevent  attachment;  Sec.  540. 


P3  ATTACHMENT.  8§  556-558 

Court  commissioners,  power  to  take  bonds,  examine  sure- 
ties, etc.:  Sec.  2.59,  subd.  3. 

Sureties,  qualifications  of:   Ante,  see.  494;  post,  sec.  1057. 

Justification:   Ante,  sees.  259,  subd.  3,  494;  post,  sec.  941. 

§  556.  V/hen  a  motion  to  discharge  attachment  may  be 
made  and  upon  what  grounds.  The  defendant  may  also  at 
any  time,  either  before  or  after  the  release  of  the  attached 
property,  or  before  any  attachment  shall  have  been  ac- 
tually levied,  apply  on  motion,  upon  reasonable  notice  to 
the  plaintiff,  to  the  court  in  which  the  action  is  brought,  or 
to  a  judge  thereof,  that  the  writ  of  attachment  be  dis- 
charged on  the  ground  that  the  same  was  improperly  or 
Irregularly  issued.  En.  March  11,  1872.  Am'd.  1873-4,  309; 
1880,  4. 

-Cal.  Rep.  Cit.  63,  183;   72,  554;   76.  290;   97,  99;   122,  96; 
137,  418;    137,  419;   139,  G39;   145,  783. 

Prac.  Act,  sec.  138.  En.  April  29,  1851.  Am'd.  1854,  61; 
1858,  153;  1860,  301. 

Cal.  Rep.  Clt.  38,  210. 

§  557.  When  motion  made  on  affidavit,  It  may  be  op- 
posed by  affidavit.  If  the  motion  be  made  upon  affidavits 
on  the  part  of  the  defendant,  but  not  otherwise,  the  plain- 
tiff may  oppose  the  same  by  affidavits  or  other  evidence,  in 
addition  to  those  on  which  the  attachment  was  made.  En. 
March   11,  1872. 

Cal.  Rep.  Cit.  84,  176;   89,  480;   137,  418. 

Prac.  Act,  sec.  139.  En.  April  29,  1851.  Am'd.  1858,  153; 
1860,    301. 

On  affidavits,  compare  application  to  dissolve  injunction: 
Ante,   sec.   532. 

§  558.  When  writ  must  be  discharged.  If,  upon  such 
application,  it  satisfactorily  appears  that  the  writ  of  attach- 
ment was  improperly  or  irregularly  issued,  it  must  be  dis- 
charged. En.  March  11,  1872. 

Cal.  Rep.  Cit.  72,  554;   97,  99;  122,  209;  137,  418;  137,  419. 

Prac.  Act,  sec.  140.  En.  April  29,  1851.  Am'd.  1858,  154; 
1860,  301. 

Cal.  Rep.  Cit.  74,  567. 


{S  I'oO.  BM  ATTACHMENT.  »M 

§  559.  When  writ  to  be  returned.  The  sheriff  must 
return  the  writ  of  attachment  with  the  Rumraons,  if  issued 
at  the  same  time;  otherwise,  within  twenty  days  after  its 
receipt,  with  a  certificate  of  his  proceedings  Indorsed 
thereon  or  attached  thereto;  and  whenever  an  order  has 
been  made  discharging  or  releasing  an  attachment  upon 
real  property,  a  certified  copy  of  such  order  may  be  filed  in 
the  offices  of  the  county  recorders  in  which  the  notices  of 
attachment  have  been  filed,  and  be  indexed  in  like  manner. 
En.  March  11,  1872.     Am'd.  1875-6,  91. 

Cal.  Rep.  Cit.  80,  466;   139.  413;   146,  779. 

Prac.   Act,  sec.  141.     En.  April  29,  1851. 

Cal.  Rep.  Clt.  43,  580. 

Notices  of  attachment  filed:  Ante,  sec.  542,  subds.  1,  2. 

Return  of  inventory  with  writ:  See  supra,  sec.  546. 


CHAPTER  V. 

RECEIVERS. 

§  564.  Appointment   of  receiver. 

§  566.  Appointment    of   receivers    upon    dissolution   of   corporatloni. 

§  606.  Who   shall   not   be   appointed. 

§  567.  Oath   and   undertaking. 

§  568.  Powers  of  receivers. 

5  569.  Investment    of    funds. 

§  564.  Appointment  of  receiver.  A  receiver  may  be 
appointed  by  the  court  in  which  an  action  is  pending,  or 
by  the  judge  thereof: 

1.  In  an  action  by  a  vendor  to  vacate  a  fraudulent 
purchase  of  property,  or  by  a  creditor  to  subject  any  prop- 
erty or  fund  to  his  claim,  or  between  partners  or  others 
jointly  owning  or  interested  In  any  property  or  fund,  on 
the  application  of  the  plaintiff,  or  of  any  party  whose  right 
to  or  Interest  in  the  property  or  fund,  or  the  proceeds 
thereof,  is  probable,  and  where  It  Is  shown  that  the  prop- 
erty or  fund  is  In  danger  of  being  lost,  removed,  or  mate- 
rially   injured; 

2.  In  an  action  by  a  mortgagee  for  the  foreclosure  of  his 
mortg-age  and  sale  of  the  mortgaged  property,  where  it 
appears  that  the  mortgaged  property  Is  in  danger  of  being 
lost,  removed,  or  materially  injured,  or  that  the  condition 
of  the  mortgage  has  not  been  performed,  and  that  the  prop- 


203  RECEIVERS.  5  565 

erty    is    probably    insufficient   to    discharge    the    mortgage 
debt; 

3.  After  judgment,  to  carry  the  judgment  into  effect; 

4.  After  judgment,  to  dispose  of  the  property  according 
to  the  judgruent,  or  to  preserve  it  during  the  pendency  of 
an  appeal,  or  in  proceedings  in  aid  of  execution,  when  an 
execution  has  been  returned  unsatisfied,  or  when  the  judg- 
ment debtor  refuses  to  apply  his  property  in  satisfaction 
of  the  judgment; 

5.  In  the  cases  when  a  corporation  has  been  dissolved, 
or  is  insolvent,  or  in  imminent  danger  of  insolvency,  or  has 
forfeited  its  corporate  rights; 

6.  In  all  other  cases  where  receivers  have  heretofore 
been  appointed  by  the  usages  of  courts  of  equity.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  53,  551;  53.  553;  53,  554;  54,  287;  54.  288; 
55.  456;  56,  29;  56.  627;  60.  227;  71.  272;  72,  573;  75, 
322;  84,  356;  84.  357;  84,  360;  84,  374;  95,  278;  108, 
435;  110.  141;  120,  618;  121,  545;  123,  237;  123.  238; 
129.  565;  130,  599;  138,  238;  144.  662.  Subd.  2—57,  624; 
65.  433;  98.  495;  99.  410;  115.  94;  120.  615;  121,  544; 
123,  235;  123,  236;  129,  565;  144,  660.  Subd.  3—110, 
144;  121.  41;  130.  599.  Subd.  4—57,  522;  72,  575;  78, 
358.  Subd.  5—53,  550;  84,  355;  85,  36;  110.  140;  129, 
632.    Subd.  6—66,  615;    85,  36;   95,  276;   115,  274. 

Prac.  Act,  sec.  143.    En.  April  29,  1851.    Am'd.  1854,  61. 

Cal.  Rep.  Cit.  20,  55;  22,  193;  25,  16;  54,  287;  54,  288;  54, 
289. 

§  565.  Appointment  of  receivers  upon  dissolution  of 
corporations.  Upon  the  dissolution  of  any  corporation, 
the  superior  court  of  the  county  in  which  the  corporation 
carries  on  its  business,  or  has  its  principal  place  of  busi- 
ness, on  application  of  any  creditor  of  the  corporation,  or 
of  any  stockholder  or  member  thereof,  may  appoint  one  or 
more  persons  to  be  receivers  or  trustees  of  the  corporation, 
to  take  charge  of  the  estate  and  effects  thereof,  and  to 
collect  the  debts  and  property  due  and  belonging  to  the 
corporation,  and  to  pay  the  outstanding  debts  thereof,  and 
to  divide  the  moneys  and  other  property  that  shall  remain 
over,  among  the  stockholders  or  members.  En.  March  11, 
1872.     Am'd.    1880,  4. 

Cal.  Rep.  Cit.  84.  366;  84,  369;  84,  370;  84,  380;  100,  119; 
101,  148;    108,   435;   108,  437;    129,  631. 


SS  566,  567  nF.rnivEns.  zo« 

Dissolution,  involuntary:  Civ.  Code,  sees.  399,  400,  and 
this  code,  post,  sees.  802  et  seq.;  voluntary:  Post,  sees. 
1227  et  seq. 

§  566.  Who  shall  not  be  appointed.  No  party,  or  attor- 
ney, or  person  interested  in  an  action,  or  related  to  any 
judRe  of  the  court  by  consanguinity  or  afllnity  within  the 
third  degree,  can  be  appointed  receiver  therein  without  the 
written  consent  of  the  parties,  filed  with  the  clerk.  If  a 
receiver  be  appointed  upon  an  ex  parte  application,  the 
court,  before  making  the  order,  may  require  from  the  ap- 
plicant an  undertaking,  with  sufficient  sureties,  in  an 
amount  to  be  fixed  by  the  court,  to  the  effect  that  the  ap- 
plicant will  pay  to  the  defendant  all  damages  he  may  sus- 
tain by  reason  of  the  appointment  of  such  receiver  and 
the  entry  by  him  upon  his  duties,  in  case  the  applicant  shall 
have  procured  such  appointment  wrongfully,  maliciously, 
or  without  sufficient  cause;  and  the  court  may.  In  its  dis- 
cretion, at  any  time  after  said  appointment,  require  an  ad- 
ditional undertaking.  En.  March  11,  1872.  Am'd.  1873-4, 
309;   1897,  CO. 

Cal.  Rep.  Cit  56,  627;   CO,  227;   64,  626;   84,  366. 

§  567.  Oath  and  undertaking.  Before  entering  upon  his 
duties,  the  receiver  must  be  sworn  to  perform  them  faith- 
fully, and  with  one  or  more  sureties,  approved  by  the  court 
or  judge,  execute  an  undertaking  to  such  person,  and  in 
such  sum  as  the  court  or  judge  may  direct,  to  the  effect 
that  he  will  faithfully  discharge  the  duties  of  receiver  in 
the  action,  and  obey  the  orders  of  the  court  therein.  En. 
March  11,  1872. 

Undertaking,  generally. — By  Political  Code,  sec.  981,  "the 
provisions  of  this  article  apply  to  the  bonds  of  receivers, 
executors,  administrators,  and  guardians."  The  article  re- 
ferred tc  is  part  3,  c.  7,  art.  9,  and  comprises  Political  Code, 
sees.  947  to  986  inclusive.  Many  of  those  provisions  seem 
quite  inapplicable  to  the  undertaking  of  receivers,  etc., 
and  want  of  space  prevents  the  insertion  of  the  whole  in 
this  place.  By  Political  Code,  sec.  982,  bonds  or  under- 
takings given  by  trustees,  receivers,  assignees,  or  officers 
of  a  court,  are  to  be  in  the  name  of  the  state  of  California, 
and  may  by  order  of  the  court  be  prosecuted  for  the  benefit 
of  any  person  interested.  Undertakings,  generally:  Post, 
sec.  941. 


207  DEPOSIT    IN    COURT.  §§  568-573 

§  568.  Powers  of  receivers.  The  receiver  has,  under 
the  control  of  the  court,  power  to  bring  and  defend  actions 
his  own  name,  as  receiver;  to  talce  and  keep  possession  of 
the  property,  to  receive  rents,  collect  debts,  to  compound 
for  and  compromise  the  same,  to  make  transfers,  and  gen- 
erally to  do  such  acts  respecting  the  property  as  the  court 
may  authorize.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  84,  11;  91,  455;  113,  515;  116,  366;  116    367- 
120,    475. 

§  569.  Investment  of  funds.  Funds  in  the  hands  of  a 
receiver  may  ba  invested  upon  interest,  by  order  of  the. 
court;  but  no  such  order  can  be  made,  except  upon  the  con- 
sent of  all  the  parties  to  the  action.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  56.  627. 


CHAPTER  VT. 

DEPOSIT    IN    COURT. 

§  572.    Deposit    In    court. 

§  573.     Money    paid    to    clerk    must   be   deposited    with    county    treasurer. 

§  574.    Manner  of   enforcing  the   order. 

§  572.  Deposit  in  court.  When  it  is  admitted  by  the 
pleading,  or  shown  upon  the  examination  of  a  party,  that 
he  has  in  his  possession,  or  under  his  control,  any  money 
or  other  thing  capable  of  delivery,  which,  being  the  sub- 
ject of  litigation,  is  held  by  him  as  trustee  for  another 
party,  or  which  belongs  or  is  due  to  another  party,  the 
court  may  order  the  same,  upon  motion,  to  be  deposited  in 
court  or  delivered  to  such  party,  upon  such  conditions  as 
may  be  just,  subject  to  the  further  direction  of  the  court. 
En.   March   11,   1872. 

Cal.  Rep.  Cit.  51,  446;   71,  271;   71,  272;   71,  273;   73,  269; 
146,   386. 

Prac.  Act,  sec.  142.     En.  April  29,  1851. 

Deposit  with  clerk:   See,  further,  post,  sec.  2104. 

§  573.  Money  paid  to  clerk  must  be  deposited  with 
county  treasurer.  If  the  money  is  deposited  in  court,  it 
must  be  paid  to  the  clerk,  who  must  deposit  it  with  the 


I  B74  DKPOSIT    IN    COURT.  SM 

county  treasurer,  by  him  to  be  held  subject  to  tho  nrdrr  of 
the  court.  For  the  safokcoping  of  the  money  drpusited 
■with  him  the  treasurer  is  liable  on  his  official  bond.  En. 
March   11,  1S72. 

Cal.  Rep.  Clt.  51,  446;'  73.  2C9. 

Deposit  with  clerk:    Post,  sec.  2104. 

§  574.  Manner  of  enforcing  the  order.  TVTienever  in  the 
exercise  cf  its  authority,  a  court  has  ordered  the  deposit 
or  delivery  of  money  or  otbi  r  thing,  and  the  order  is  dis- 
obeyed, the  court,  beside  punishing  the  disobedience,  may 
make  an  order  requiring  the  sheriff  to  take  tlie  money  or 
thing  and  deposit  or  deliver  it  in  conformity  with  the  direc- 
tion of  the  court.     En.  March  11.  1872. 

Cal.    Rep.   Cit.   51,  446;    57,   522;    99.  275. 
Punishing  the  disobedience,  contempt:    Sec.  1209. 
Sheriff's  duties,  as  to  official  moneys:  Pol.  Code,  sec.  4181. 


20i  JUDGMENT   IN    GENERAU  3  ^^ 

TITLE  VIII. 

OF  THE  TRIAL  AND  JUDGMENT  IN  CIVIL  ACTIONS. 

Chapter  I.     Judgment  in  General,  §§  577-582. 

II.     Judgment  Upon  Failure  to  Answer,  §  585. 

III.  Issues— The  Modes  of  Trial  and  Postponements, 

§§  588-596. 

IV.  Trial  ty  Jury,  §§  600-628. 

V.     Trial  by  the  Court,  §§  631-636. 
VI.    Of  References  and  Trials  by  Referees,  §§  638- 
645. 

VII.  Previsions  Relating  to  Trials  in  General,  §§  646- 

6631/^.  .        T  ^ 

VIII.  The  Manner  of  Jivinjr  and  Entering  Judgment, 

§§  664-6801^. 

CHAPTERS.  I. 

JTTDGMENT  IN   GEi<JEKAU 

{  57T.  Ju(5prTnent  deflned. 

(  578.  Judgment  may  be  for  or  against  cce  of  the  paraea. 

S  579.  Judgment   may   be   against   one   party   and   action   proceed   aa   to 

others. 

C  580.  The  relief  to  be  awarded  to  the  plaintiff. 

{  581.  Action   may  be   dismissed   or  nonsuit  e,.. tared. 

S  B82.  All  other  Judgments  are  on  the   merits. 

S  583.  Dismissal   of  actions. 

§  577.  Judgment  defined.  A  judgment  Is  the  final  de- 
termination of. the  rights  of  the  parties  in  an  action  or  pro- 
ceeding.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  63,  508;   80,  170;   89,  486;   93,  651;   98,  639; 
99,  282;  119,  440;  125,  68;  128,  167;  133,  108;  134,  124; 
134,  468;   147,  128. 
Prac.  Act,  sec.  144.    En.  April  29,  1851. 
Cal    Rep.   Cit.   3,   215;    12,   468;    20,   55;    20.   56;    27,   234; 

28,  85;  44,  87;  46,  208. 
Judgment,  confession,  by:     Post,  sec.  1132;   default,  by: 
Post.  sec.  585;  demurrer,  on:     Post,  sec.  636;  estoppel  as  to 
Post,  sec.  1908;   generally:     Post,  sec.  664;   nonsuit:     Po=>t, 
sec.  581;  on  trial  by  court:     Post,  sec.  633;  on  trial  by  jury. 
Post.  sec.  664. 

Order  defined:     Post.  sec.  1003. 

Final  judgment:     See,  also,  post,  sees.  064,  9o3. 

Code   Civil   Proc— 14. 


11  CTS-SBO  JUDGMENT    IN    GENEHAU  » 

5  578.  Judgment  may  be  for  or  against  one  of  the 
parties.  Judgment  may  be  given  for  or  against  one  or 
more  of  several  plaintiffs,  an^l  for  or  against  one  or  more 
of  several  defendants,  and  It  may.  when  the  jiistice  of 
the  case  requires  it,  determine  the  ultimate  rights  of  the 
parties  on  each  side,  as  between  themselvs.  En.  March 
11,  1872. 

Cal.  Rep.  CIt.  58,  C07;   71.  447;    71.  451;   78.  2r,r.;   82,  583; 
110,  492;  136,  71;   13G.  302;  14fi.  575;  147,  437. 

Prac.  Act,  sec.  145.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  18,  400;  82,  583. 

Striking  oat  party:     Ante,  sec.  473. 

Fresh  parties,  bringin-g  in:     Ante.  sec.  3S9. 

Service  on  one  defendant  out  of  several,  effect  of:  '  Ante, 
Bee.  414. 

Joint  debtors,  proceedings  against:     Post,  sees.  989  et  seq. 

Joining  persons  severally  liable  on  same  Instrument: 
Ante.  sec.  383. 

Association,  action  against  persons  under  name  of: 
Ante,  sec.  388. 

§  579.  Judgment  may  be  against  one  party  and  action 
proceed  as  to  others.  In  an  action  ac;;iinst  several  dofrnd- 
ants,  the  court  may.  In  its  discretion,  render  judgment 
against  one  or  more  of  them,  leaving  the  action  to  pro- 
ceed against  the  others,  whenever  a  several  judgment  i3 
proper.     En.  March  11,  1872. 

Cal.  Rep.  Cit  103,  36;  136,  302. 

Pra«.  Act,  sec.  146.     En.  April  29,  1851. 

OaJ.  Rep.  Cit  6,  183;  24,  382. 

Striking  out  party:     Ante,  sec.  473. 

Fresh  parties,  bringing  in:     Ante,  sec.  389. 

Service  on  one  defendant  out  of  several,  effect  of:  Ante, 
sec.  414. 

Joint  debtors,  proceedin'gs  against:    Post,  sees.  989  et  seq. 

Joining  persons  severally  liable  on  sajne  instrument: 
Ante,  sec.  383. 

§  580.  The  relief  to  be  awarded  to  the  plaintiff.  The 
relief  granted  to  the  plaintiiT,  if  there  be  no  answer,  cannot 
exceed  that  which  he  shall  have  demanded  in  his  com- 
plaint; but  in  any  other  case,  the  court  may  grant  him  any 
relief  consistent  with  the  case  made  by  the  complaint  and 
embraced  within  the  issue.    En.  March  11,  1872. 


211  JUCOMENT    IN    GENERAU  §  581 

Cal    Ren    Cit.   53,  288;    57,  326;    63,  106;    65,  55;   65,  353; 
'to    333-    72     249;    75,   522;    78,   40;    99,   68;     99,    244; 

99'  418-'lOO'  625;  105.  45n;  107,  255;  110,  492;  116,  324; 

116    377-  117    220;  120,  43;   122,  398;  125.  312;  125,  313; 

125'  557-  125'  558-  120,  341;  126.  342;  126,  424;  128,  319; 

129'  179-  130*  406;  131,  48;  132,  697;  132,  698;  133,  230; 

133',  494';   136,  29;   141,  364;  142,  63;   144,  67;  144,  775; 

146]  ll;'l46,  416. 
Prac.  A^t,  sec.  147.    En.  April  29,  1851. 
Cal    Rep    Cit.  11.  19;    20,  92;   28,  294;   32,  650;    34,    81; 

37,  528;  41,  256;  117,  220. 

§  581.  Action  may  be  dismissed  or  nonsuit  entered.  An 
action  may  be  dismissed,  or  a  judgment  of -nonsuit  entered. 
In  the  following  cases: 

1  By  the  plaintiff  himi5elf,  by  written  request  to  the 
clerk  filed  among  the  papers  in  the  case,  at  any  tinw 
before  trial,  upon  payment  of  costs;  provided,  a  counter- 
claim has  not  been  made,  or  affirmative  relief  sought  by  the 
cross^omplaint  or  answer  of  the  defendant.  If  a  pro- 
visional remedy  has  been  allowed,  the  undertaking  must 
thereupon  be  delievered  by  the  cerk  to  the  defendant,  who 
may  have  his  action  thereon;  ,    ,  ^v      *u 

2  By  either  party  upon  the  written  consent  of  the  otner; 

3  By  the  court,  when  the  plaintiff  fails  to  appear  on 
the  trial,  and  the  defendant  appears  and  asks  for  the  dis- 

™4^     By   the   court,  when,  upon  the  trial   and  before  the 
final  submission  of  the  case,  the  plaintiff  abandons  it; 

5  By  the  court,  upon  motion  of  the  defendant,  when 
upon  the  trial  the  plainUff  fails  to  prove  a  siifficient  case 

°6  By^ihe  court,  when,  after  verdict  or  final  submission, 
the  party  entitled  to  judgment  neglects  to  demand  and 
have  the  same  entered  for  more  than  nx  months. 

The  dismissals  mentioned  in  subdivisions  one  and  two 
hereof  are  made  by  entry  in  the  clerk's  register. 

The  dismissals  mentioned  in  subdivisions  three,  lo^r  five, 
and  six  of  this  section,  shall  be  made  by  orders  of  the 
couri:  entered  upon  the  minutes  thereof  and  sjall  be 
effective  for  all  purposes  when  so  entered,  but  tjie  c  erk 
of  the  court  shall  note  such  orders  m  his  register  of  actions 

'''7'^VnTno  action  heretofore  or  hereafter  commenced 
^all  be  further  prosecuted,  and  no  further  Proceedmgs 
Bhall  be  had  therein,  and  all  actions  J'^^etofore  or  hereafter 
commenced  shaU  be  dismissed  by  the  court  in  which  the 


{  582  JUDGMENT   IN   GEXEnAL.  JU 

same  shall  have  been  commenced,  on  its  own  motion,  or 
on  motion  of  any  part}-  Interested  therein,  whether  named 
in  the  complaint  as  a  party  or  not.  unless  summons  shall 
havo  been  issued  within  one  year,  and  all  such  actions  shall 
be  in  like  manner  dismissed,  unless  the  summons  shall  be 
served  and  return  thenon  m:ide  within  throe  years  after 
the  commencement  of  said  a<^tion.  But  all  siioh  actions 
may  be  proscx^uted,  if  appearance  has  been  made  by  the 
def'endant  or  defendants,  within  said  three  years  in  the 
sarao  manner  as  jf  summons  ha4  been  issued  and  served. 
En.  March  11,  1872.  Am'd.  1877-8,  100;  1885,  76;  1889,  398; 
1895.  31;  1897,  98. 
Cal.  Rep.  Cit.  58,  190;  77,  84;  82,  415;  93.  509;  93,  511 
99,  339;  102.  614;  113.  304;  113.  306;  118,  224;  125,  300 

125.  392;  13G,  300;  120,  301;  127.  523;  127,  524;  129,  250 
129.  672;  132,  83;  132,  436;  135,  672;  136,  316;  136,  554 
136.  655;  137.  272;  137.  657;  140,  34;  140,  174;  141.  9 
141,  55;  141.  655;  141.  667;  144,  655;  146,  750;  147,  502 
147,  605.  Subd.  1—53,  32;  65,  97;  65,  266;  66,  350 
67.   590;    76,   373;    82.  415;    90.   216;     90,   391;    106,   62 

115.  155;  116.  667;  118.  221 ;  125,  264;  132.434;  132 
435;  134,  62;  135.  668;  136,  316;  136.  553;  139,  94:  140 
377;  141,  284;  145,  570.  Subd.  2—104,  667.  Subd.  3— 
77,  327;  122.  384;  125.  214;  126.  298;  129.  672.  Subd. 
4—56.  588;  91,  356;  123.  386;  126.  299:  129,  672.  Subd. 
5—53,  310;  53,  388;  113,  692;  129,  672.  Subd.  6—75, 
5bo;    77,   459;    97,    425;    110,    227;    126.    247;    126,    324; 

126,  609;  129.  672.  Subd.  7—99,  385;  100.  512;  113, 
303;  119,  177;  125,  299;  128,  256;  132,  82;  132.  455; 
132,  507;  132,  508;  137,  271;  141,  7;  141,  578;  141,  655; 
144,  427. 

Prac.  Act,  sec.  148.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     13.  637;    18,  77;    20.  93;    22,  102;    22,  465; 

25,  276;    25,  277;    28,  169;    35,  302;    47,  546;    47,  547; 

126,  299;    135,  668. 
Dismissal  for  want  of  prosecution:   See  post,  sec.  583. 
Variance,  fatal  or  otherwise:  Ante,  sees.  469-471, 
Trial — Either  party  may   bring   on:   Post,   sec.  594. 

§  582.  All  other  judgments  are  on  the  merits.  In  every 
ease,  other  than  those  mentioned  in  the  last  section,  judg- 
ment must  be  rendered  on  the  merits.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  58,  190;  9?,  509;  94,  469;  118,  224;  125,  214; 
126,  299;  126,  300;  129,  250. 

Prac.  Act,  sec.  149.     En.  April  29,  1851. 

Cal.  Rep.  Cit     25,  277;   47,  548;   126,  299. 


21S  JUDGMENT   XJPON   FAILURE   TO   ANSWER.  §§  5S3,  585 

§  583.  Dismissal  of  actions.  The  court  may  in  its  dis- 
cretion dismiss  any  action  for  want  of  prosecution  on  mo- 
tion of  the  defendant  and  after  due  notice  to  the  plaintilt, 
whenever  plaintiff  has  failed  for  two  years  after  answer 
filed  to  bring  such  action  to  trial.  Any  action  heretofore 
or  hereafter  commenced  shall  be  dismissed  by  the  court 
in  which  the  same  shall  have  been  commenced  or  to  which 
it  may  be  transferred  on  motion  of  the  defendant,  after 
due  notice  to  plaintiff  or  by  the  court  on  its  own  motion, 
unless  such  action  is  brought  to  trial  within  five  years 
after  the  defendant  has  filed  his  answer,  except  where  the 
parties  have  stipulated  in  writing  that  the  time  may  be  ex- 
tended.   Ea.  Stats.  1905.  244. 


CHAPTER  IL 

JUDGMENT  UPON   FAILURE  TO   ANSWER. 

§  B85.    In    what   caaca   Judgment   may   be   had   upon   the   fallnre   of   the 
defendant  to  answer. 

§  585.  In  what  cases  Judgment  may  be  had  upon  the 
failure  of  the  defendant  to  answer.  Judgment  may  be 
had,  if  the  defendant  fail  to  answer  the  complaint,  as  fol- 
lows: 

1.  In  an  action  arising  upon  contract  for  the  recovery 
of  money  or  damages  only,  if  no  answer  has  been  filed  with 
the  clerk  of  the  court  within  the  time  specified  in  the  sum- 
mons; or  such  further  time  as  may  have  been  granted,  the 
clerk,  upon  application  of  the  plaintilT,  must  enter  the  de- 
fault of  the  defendant,  and  immediately  thereafter  enter 
judgment  for  the  amount  demanded  in  the  prayer  of  the 
complaint,  Including  the  costs,  against  the  defendant,  or 
aguinst  one  or  more  of  several  defendants  in  the  cases  pro- 
vided for  in  section  four  hundred  and  fourteen; 

2.  In  other  actions,  if  no  answer  has  been  filed  with  the 
clerk  of  the  court  within  the  time  specified  in  the  sum- 
mons, or  such  further  time  as  may  have  been  granted,  the 
clerk  must  enter  the  default  of  the  defendant;  and  there- 
after the  plaintiff  may  apply  to  the  court  for  the  relief  de- 
manded in  the  complaint.  If  the  taking  of  an  account,  or 
the  proof  of  any  fact,  is  necessary,  to  enable  the  court  to 
give  judgment,  or  to  carry  the  judgment  into  effect,  the 
court  may  take  the  account  or  hear  the  proof;  or  may,  in 
its  discretion,  order  a  reference  for  that  purpose.  And 
where  the  action  is  for  the  recovery  of  damages,  in  whole 


S  686  JUDGMENT   UPON   FAILURE  TO   ANSWER.  tli 

or  In  part,  the  court  may  order  the  damages  to  be  assessod 
by  a  jury;  or  if,  to  determine  the  amount  of  damages,  the 
examination  of  a  long  account  be  Involved,  by  a  reference 
as  above  provided; 

S.  In  actions  where  the  service  of  the  summons 
was  by  publication,  the  plaintilT,  upon  the  expiration 
of  the  time  for  answerirg,  may,  upon  proof  of  the  pub- 
lication, and  that  no  answer  has  been  filed,  apply  for 
judgment;  and  the  court  must  thereupon  require  proof  to 
be  made  of  the  demand  mentioned  in  the  complaint;  and 
If  the  defendant  be  not  a  resident  of  the  state,  must  re- 
quire the  plaintiff,  or  his  agent,  to  be  examii.^d  on  oath, 
respecting  any  payments  that  have  been  made  to  the  plain- 
tiff, or  to  any  one  for  his  use,  on  account  of  such  demand, 
and  may  render  judgment  for  the  amount  which  he  is  en- 
titled to  recover.     En.  March  11,  1872.     Am'd.  1905,  42. 

Cal.  Rep.  Clt  53,  254;  64,  204;  68,  425j  68,  427;  68,  428; 
90,  507;  103,  207;  136,  363.  Subd.  1—108,  30;  108,  31; 
111,  551;  136,  557;  136,  574;  144,  4.  &ubd.  2—136,  363; 
136,  574.     Subd.  3—137,  427. 

Prac.  Act,  sec.  150.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  4,  256;  6,  156;  7,  450;  17,  566;  28.  214;  32. 
635;   32,  636;  34,  27;   68,  427. 

As  to  validity  of  service  of  summons:   Sec.  411. 

Names,  fictitious,  amending,  etc.:   Sec.  474. 

Appeal:   Sec.  939. 

Award,  judgment  on:  Sec.   1286. 

Confession,  judgment  by:   Post,  sees.  1132  et  seq. 

Dollars  and  cents,  without  fractions,  money  judgments 
must  be  in:   Pol.  Code,  sec.  3274. 

Gold  coin,  judgment  in:  Post,  sec.  667. 

J-udgment,  generally,  docketing,  satisfaction,  etc.:  Post, 
Bees.  664-675. 

Judgment,  void,  etc.,  setting  aside:  Ante,  sec.  473. 

Objections,  waiver  of,  by  not  demurring  or  answering: 
Ante,  sec   434. 

Pending,  action  when:  Post,  sec.  1049. 


as  ISSUES.  8§  588-591 

CHAPTER    III. 

ISSITES— TITE    MODE    OF    TRIAL    AND    POSTPONEMENTS. 

§  5SS.    Issue   defined,   and  the  different  kinds. 

§  5S9.    Issue  Of  law,   how  raised, 

§  590.     Issue   of   fact,    how    raised. 

§  591.    Isisue  of  law,    how  tried. 

S  592.  Issue  of  fact,  how  tried.  "When  Issues  both  of  law  and  fact, 
the  former  to  be  first  disposed  of. 

§  593.  Clerk  must  enter  causes  on  the  calendar,  to  remain  until  dis- 
posed of. 

§  594.     Parties   may   bring   Issue   to   trial. 

§  596.  Motion  to  postpone  a  trial  for  absence  of  testimony,  requisites 
of. 

{  59G.  In  cases  of  adjournment  a  party  may  have  the  testimony  of 
any  witness  taken. 

§  588.  issue  defined,  and  the  different  kinds.  Issues 
arise  upon  the  pleadings  when  a  fact  or  conclusion  of  law 
is  maintained  by  the  one  party,  and  is  controverted  by  the 
other.     They  are  of  two  kinds: 

1.  Of   law;    and, 

2.  Or  fact.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     88,  227;  88,  315;  93,  619;  132,  11;  135,  669; 

Subd.  2—120.  37. 
Prac.  Act,  sec.  151.     En.  April  29,  1851. 
Issues  of  law  and  fact:   See  post,  sees.  589,  590. 

§  589.  Issue  of  law,  how  raised.  An  issue  of  law  arises 
upon  a  demurrer  to  the  complaint  or  answer,  or  to  some 
part  thereof.     En    March  11,  1872. 

Cal.    Rep.    Cit.     88,    227. 

Prac.  Act,  sec.  152.  En.  April  29,  1851.  Am'd.  1854,  62. 

Cal.  Rep.  Cit.  1,  334;  1,  335. 

5  590.  Issue  of  fact,  how  raised.  An  issue  of  fact 
arises: 

1.  Upon  a  material  allegation  in  the  complaint,  contro- 
verted by  the  answer;   and, 

2.  Upon  new  matters  in  the  answer,  except  an  issue  of 
law  is  joined  thereon.     En.  March  11,  1872. 

Cal.  Rep.   Cit.     88,  227;    99,  270;    108,  455;    124,  215;    125, 

16;   125,  204;   132,  11.     Subd.     1,  120,  37. 
Prac.  Act,  sec.  153.     En.  April  29,  1851.    Am'd.  1854,  62. 
Cal.   Rep.   Cit     41,   404. 

§  591.  Issue  of  law,  how  tried.  An  issue  of  law  must  be 
tried  by  the  court,  unless  it  is  referred  upon  consent.  En. 
March   11,    1872. 

Cal.   Rep.    Cit.     135,   669. 


§S  r.9;-594  IS.SUE3.  SI 

Prac.    Act,    sec.    154.     En.    April    29,    1851, 

Trial  by  court,  generally:   Post,   sees.  631  et  soq. 

§  592.  Issue  of  fact,  how  tried.  When  issues  both  of 
law  and  fact,  the  former  to  be  first  disposed  of.  In  ac- 
tions for  the  recovery  of  specific  real  or  personal  property, 
with  or  without  damages,  or  for  money  claimed  as  due 
upon  contract,  or  as  damages  for  breach  of  contract,  or  for 
Injuries,  an  issue  of  fact  mu.st  be  tried  by  a  jury,  unless 
a  jury  trial  is  waived,  or  a  reference  is  ordered,  as  pro- 
vided In  this  code.  Where  in  these  cases  there  are  issues 
both  of  law  and  fact,  the  issue  of  law  must  be  first  dis- 
posed of.  In  other  cases,  issues  of  fact  must  be  tried  by 
the  court,  subject  to  its  power  to  order  any  such  issue  to 
be  tried  by  a  jury,  or  to  be  referred  to  a  referee,  as  pro- 
vided in  this  code.     En.  March  11,  1872.     Am'd.  1873-4,  309. 

Cal.  Rep.  Cit.  50.  506;  64,  56;  64,  473;  C8,  264;  88,  183; 
89,  598;  104,  2S8;  104,  372;  109,  444;  127,  201;  128,  523; 
130.  521;  146,  420. 

Prac.  Act,  sec.  155.     En.  April  29,  1851. 

Generally,  as  to  jur>'  trial:   Post,  sees.  600-628. 

Waiver  of  jury  trial:   Post,  sec.  631. 

Reference:   Post,    sees.    038-645. 

Ck)urt,  trial  by:   Post,  sees.  631-636. 

§  593.  Clerk  must  enter  causes  on  the  calendar,  to  re- 
main until  disposed  of.  The  elerk  must  enter  causes  upon 
the  calendar  of  the  court  according  to  the  date  of  issue. 
Causes  once  placed  on  the  calendar  must  remain  upon  the 
calendar  until  finally  disposed  of;  provided,  that  causes 
may  be  dropped  from  the  cajendar  by  consent  of  parties, 
and  may  be  again  restored  upon  notice.  En.  March  11, 
1872.     Am'd.    1880,   5. 

Prac.  Act,  sec.  156.     En.  April  29,  1851, 

Cal.  Rep.   Clt.     48,  425. 

Mandamus  to  compel  clerk  to  perform  duty:  Post,  sec 
1085. 

Issue,   generally: Ante,   sec.   588. 

Abolition  of  terms:   See  Const.   Cal.,  aii;.   6,  sec.   5, 

§  584.  Parties  may  bring  issue  to  trial.  Either  party 
may  bring  an  issue  to  trial  or  to  a  hearing,  and  in  tlie 
absence  of  the  adverse  party,  unless  the  court,  for  good 
cause,  otherwise  direct,  may  proceed  with  his  case,  and 
take  a  dismissal  of  the  action,  or  a  verdict  or  judgment, 
as  the  case  may  require;  provided,  however,  if  the  issue 
to  be  tried  is  an  issue  of  fact,  proof  must  first  be  made 


217  ISSUES.  §§  595,  696 

to  the  satisfaction  of  the  court  that  the  adverse  party 
has  had  five  days'  notice  of  such  trial.  En.  March  11,  1872. 
Am'd.  1899,  5. 

Cal.  Rep.  Cit.     83,  230;    101,  178;    125,  214;   129,  685;   133, 

419;    146,   214. 
Prac.  Act,  sec.  157.     En.  April  29,  1851. 
Cal.    Rep.    Cit.     50,    552. 
Dismissal:  Ante,   sec.    581. 

Surprise,  setting  aside  judgment  for:  Ante,  sec.  473. 
Surprise,  new  trial:  Post,  sec.  657. 

§  595.  Motion  to  postpone  a  trial  for  absence  of  testi- 
mony, requisites  of.  A  motion  to  postpone  a  trial  on  the 
ground  of  the  absence  of  evidence  can  only  be  made  upon 
affidavit  showing  the  materiality  of  the  evidence  expected 
to  be  obtained,  and  that  due  diligence  has  been  used  to 
procure  it.  A  trial  shall  be  postponed  when  it  appears  to 
the  court  that  the  attorney  of  record,  party,  or  principal 
witness  is  actually  engaged  In  attendance  upon  a  session 
of  the  legislature  of  this  state  as  a  member  thereof. 
The  court  may  require  the  moving  party,  where  application 
is  made  on  account  of  the  absence  of  a  material  witness, 
to  state  upon  affidavit  the  evidence  which  he  expects  to 
obtain;  and  if  the  adverse  party  thereupon  admits  that 
such  evidence  would  be  given,  and  that  it  be  considered  as 
actually  given  on  the  trial,  or  offered  and  overruled  as 
improper,  the  trial  must  not  be  postponed.  En.  March  11, 
1872.     Am'd.  1880,  1. 

Cal.  Rep.  Cit.  55,  51;  76,  342;  85,  307;  101,  176;  101,  178; 
113,  287;   145,  151. 

Prac.  Act,  sec.  158.     En.  April  29,  1851. 

Costs  on  continuance:    Post,  sec.   1029. 

§  596.  In  cases  of  adjournment  a  party  may  have  the 
testimony  of  any  witness  taken.  The  party  obtaining  a 
postponement  of  a  trial  in  any  court  of  record  must,  if 
required  by  the  adverse  party,  consent  that  the  testimony 
of  any  witness  of  such  adverse  party,  who  is  in  attendance, 
be  then  taken  by  deposition  before  a  judge  or  clerk  of  the 
court  in  which  the  case  is  pending,  or  before  such  notary 
public  as  the  court  may  indicate,  which  must  accordingly 
be  done;  and  the  testimony  so  taken  may  be  read  on  the 
trial,  with  the  same  effect,  and  subject  to  the  same  ob- 
jections, as  if  the  witnesses  were  produced.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     84,  225. 

Depositions,  in  the  state:  Post,  sees.  2019-2021,  2031- 
2038. 


55  600.  COl  TUIAL    13 Y    JUUY.  XU 


CHAPTER   IV. 

TRIAL    UY    JURY. 


Article  I.     Formation    of   Jury,    §5    600-604. 
II.     Conduct    ot    the   Trial.    55    607-610. 
III.    The   Verdict,    5}   u':'(-6;:ji. 


ARTICLE  I. 

FORMATION    OK    TIIIC    Jl'RT. 

5  600.  Jury,    how    drawn. 

§  COl.  Chiillongos.    Each    p.arty    ciitllled    to    four   peremptory    challenge*. 

5  602.  Groumls   of   chall.nKC. 

§  603.  Challenges,    how    tried. 

5  604.  Jury    to   be   sworn. 

§  600.  Jury,  how  drawn.  "WTien  the  action  Is  called  for 
trial  by  jury,  the  clerk  must  draw  from  the  trial  jury 
box  of  the  court  the  ballot-s  contaiiiinj;  the  names  of  the 
jurors,  until  the  jury  is  completed  or  the  ballots  are  ex- 
hausted.    En.  March  11,  1872. 

Prac.  Act,  sec.  159.     En.  April  29.  1S51. 

Cal.  Rep.  Cit.     37,  678;  37,  679;  37.  689;  37,  690;  45.  330. 

Jury,  generally:  Ante.  sees.  190-254;  trial  jury:  Ante, 
sees.  193,  194. 

Trial  by  jury,  conduct  of:  Post,  sees.  607  et  seq.;  waiver 
of:   Sec.  G31;   verdict  after:  Post,  sees.  624  et  seq. 

Trial  jury  box:   Ante,  sec.  246. 

Jurors,  who  are  competent:   Ante,  sees.  198,  199. 

Exceptions  and  excuses:  Ante,  sees.  200-202. 

§  601.  Challenges.  Each  party  entitled  to  four  peremp- 
tory  challenges.  Either  party  may  challenge  the  jurors, 
but  where  there  are  several  parties  on  either  side,  they 
must  join  in  a  challenge  before  it  can  be  made.  The  chal- 
lenges are  to  individual  jurors,  and  are  either  peremptory 
or  for  cause.  Each  party  is  entitled  to  four  peremptory 
challenges.  If  no  peremptory  challenges  are  taken  until 
the  panel  is  full,  they  must  be  taken  by  the  parties  alter- 
nately, commencing  with  the  plaintiff.  En.  March  11,  1872. 
Am'd.  1873-4,  310. 

Cal.  Rep.  Cit.     78,  120;  78,  123;   110,  416;  138,  165. 


m  TRIAL    BY   JURY.  §S  602,  60J 

Prac.  Act,  sec.  161.     En.  April  29,  1851. 
Challenge  for  cause:   Post,  sec.  602. 

§  602.  Grounds  of  challenge.  Challenges  for  cause  may 
be  taken  on  one  or  more  of  the  following  grounds: 

1.  A  want  of  any  of  the  qualifications  prescribed  by  this 
code  to  render  a  person  competent  as  a  juror. 

2.  Consanguinity  or  affinity  within  the  fourth  degree 
to  any  party. 

3.  Standing  in  the  relation  of  guardian  and  ward,  master 
and  servant,  employer  and  clerk,  or  principal  and  agent, 
to  either  party,  or  being  a  member  of  the  family  of  either 
party,  or  a  partner  in  business  with  either  party,  or  surety 
on  any  bond  or  obligation  for  either  party. 

4.  Having  served  as  a  juror  or  been  a  witness  on  a 
previous  trial  between  the  same  parties,  for  the  same  cause 
of  action. 

5.  Interest  on  the  part  of  the  juror  In  the  event  of  the 
action,  or  In  the  main  question  involved  In  the  action, 
except  his  Interest  as  a  member  or  citizen  of  a  municipal 
corporation. 

6.  Having  an  unqualified  opinion  or  belief  as  to  the 
merits  of  the  action,  founded  upon  knowledge  of  Its  mate- 
rial facts,  or  of  some  of  them. 

7.  The  existence  of  a  state  of  mind  in  the  juror  evincing 
enmity  against  or  bias  to  or  against  either  party.  En. 
March  11,  1872.     Am'd.  1873-4,  310. 

Cal.  Rep.  Cit.     141,  742;  146,  422;  146,  425.     Subd.  2—130, 
107;    130,   108.     Subd.   5—121,   107.     Subd.   7—124,  314. 

Prac.  Act,  sec.  162.     En.  April  29,  1851.     Am'd.  1860,  302. 

Cal.  Rep.  Cit.     12,  492. 

Subd.  1.  Want  of  necessary  qualifications — Competent 
jurors:  Ante,  sec.  198.  Incompetent  jurors:  Ante,  sec.  199. 
Exemptions  and  excuses:   Ante,  sees.  200,  201. 

Subd.  2.  Consanguinity  or  aflinity,  generally:  Ante,  sec. 
170. 

Challenge  in  criminal  causes:  See  Pen.  Code,  sees.  1055 
et  seq. 

§  603.  Challenges,  how  tried.  Challenges  for  cause 
must  be  tried  by  the  court.  The  juror  challenged  and  any 
other  person  may  be  examined  as  a  witness  on  the  trial 
of  the  challenge.     En.  March  11,  1872. 

Prac.  Act,  sec.  163.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     29.  136. 


gS  GO*,  007  THIAI.    DY    JTRY.  SO 

§  604.  Jury  to  be  sworn.  As  soon  as  the  jury  Is  com- 
pleted, an  outh  must  be  administered  to  the  jurors,  in 
substance,  that  they  and  each  of  them  will  well  and  truly 

try    the    matter   In    issue    between    ,    the   plaintiff,    and 

,    defendant,   and   a   tr\ie   verdict   render,   according   to 

the  evidence.     En.   March  11.  1872. 

Prac.  Act,  sec.  160.     En.  April  29.  1851. 

Cal.  Rep.  Cit.     37,  C89;    37,  690;    45,  330;    144,  756. 

Oath,  administration  of,  generally:   Post,  sees.  2093-2097. 


ARTICLE  II. 

CONDUCT  OF  THE  TRIAU 

{  (WT.     Orilrr  of   prnrer<1lnK9   on   trial. 

8  608.     Charffo    to    the   Jur.v.    Court    must    furnish.    In    writing,    upon    re- 

riucat,    the    points    of    law    contained    therein. 
J  S09.     .Spotlul    InstructI  ins. 
g  CIO.     View   liy   Jury   of   the   premises. 
5  CU.     .\i1monUlon    whon    Jury    permitted    to    separata. 
§  G12.     Jury    may   take   with    Ihim   certain   papers. 

S613.     Dfllberatlon    of    Jury,    how    ccinilucted, 
614.     May   come   Into   court   for   further   Instructions. 
5  616.     Proceedings  In   case  a  Juror  becomes  sick. 
§  616.    When    prevented    from    giving   verdict,    the   cause   may   he    nsrafm 

tried. 
§  617.    While   Jury   are   absent,    court   may   adjourn    from    tlma    to    tlm«. 

Sealed   verdict. 
§  618.     Verdict,    how   declared.     Form    of.     Polling   the   Jury. 
§  619.    Proceedings    when    verdict    Is    Informal. 

§  607.  Order  of  proceedings  on  trial.  When  the  Jury 
has  been  sworn,  the  trial  must  proceed  In  the  following 
order,  unless  the  judge,  for  special  reasons,  otherwise 
directs: 

1.  The  plaintiff,  after  stating  the  issue  and  his  case,  must 
produce  the  evidence  on  his  part; 

2.  The  defendant  may  then  open  his  defense,  and  offer 
his  evidence  in  support  thereof; 

3.  The  parties  may  then  respectively  offer  rebutting 
evidence  only,  unless  the  court,  for  good  reason,  In  fur- 
therance of  justice,  permit  them  to  offer  evidence  upon 
their  original  case; 

4.  When  the  evidence  Is  concluded,  unless  the  case  is 
submitted  to    the    jury    on  either  side,  or  on  both  sides. 


2a  TRIAL    BY    JURY.  J  608 

without  ar^iment,  the  plaintiff  must  commence  and  may 
conclude  the  ar§umc-nt; 

5.  If  several  defendants,  having  separate  defenses,  ap- 
pear by  different  counsel,  the  court  must  determine  their 
relative  order  in  the  evidence  and  argument. 

6.  '5iie  court  may  then  charge  the  Jury.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.     67,  445;   140,  420;  140,  428;   140,  429;  UQ^ 
480;   140,  438. 

Proceedings,  etc.,  on  trial — Amendments:  Sec.  478. 
Either  party  may  bring  on  trial:  Ante,  sec.  594.  Nonsnita, 
etc.:  Ante,  sec.  581.  As  to  the  proof  necessary  to  make 
out  a  case:  Post,  sees.  1867,  1869.  Variance:  Ante,  sees. 
469-471.    View  by  Jury:   Post,  sec.  610. 

Evidence — Order  of  proof:  Sec.  2042.  Admissibility  Is 
for  court:  Post,  sec.  2102.  Allegations,  material  only  need 
be  proved:  Sec.  1867.  Burden  of  proof:  Post,  sees.  1869, 
1981.  Relevancy  of  evidence:  Post,  sees.  1868-1870.  Rele- 
vancy, collateral  facts:   Post,  sees.  1868,  1870. 

Witnesses — Answer,  witness  must:  Sec.  2065.  Cross-ex- 
amination: Post,  sec.  2048.  Direct  examination:  Post,  sec. 
2045.  Excluding  witnesses  from  courtroom:  Post,  sec. 
2043.  Experts:  Post,  sec.  1870,  subd.  9.  Impeaching  and 
evidence  of  good  character:  Post,  sees.  2049-2053.  Inter- 
preters: Post.  sec.  1884.  Leading  questions:  Post,  sec.  2046. 
Mode  of  Interrogation:  Post,  sec.  2044.  Oaths:  Post,  sees. 
2093-2097.  Protection  of  witnesses:  Post,  sec.  2066.  Re- 
freshing memory:  Pv-st,  sec.  2047.  Testimony,  clerk  to 
take  down,  if  no  shorthand  reporter:  Post,  sec.  1051. 
Writing  shown  to  witness,  other  side  may  see:  Post,  sec. 
2054. 

Charge  to  Jury:   Post,  sees.  608,  609. 

8  608.  Charge  to  the  Jury.  Court  must  furnish,  In  writ- 
ing, upon  request,  the  points  of  law  contained  therein. 
In  charging  the  jury,  the  court  may  state  to  them  all  mat- 
ters of  law  which  it  thinks  necessary  for  their  information 
in  giving  their  verdict;  and  if  It  state  the  testimony  of  the 
case,  it  must  inform  the  Jury  that  they  are  the  exclusive 
Judges  of  all  questions  of  fact.  The  court  must  furnish 
to  either  party,  at  the  time,  upon  request,  a  statement,  in 
writing,  of  the  points  of  law  contained  in  the  charge,  or 
sign  at  the  time  a  statement  of  such  points  prepared  and 


II    ;.  .  Ci:  TKIAI.    I;Y    Jl'RT.  232 

siihiiillted  by  the  counsel  of  either  party.  En.  March  11, 
1872. 

Cal.  Rep.  Clt.    124.  523. 

Prac.  Act,  sec.  165.     En.  April  29.  1851. 

Matters  of  law,  court  stating  In  charge:  Const.  Cal..  art 
6,  sec.  19;   poBt,  sec.  2102,  also  sec.  20G1;  sec.  657,  subd.  7. 

§  609.  Special  instructions.  Wlicre  either  party  a.sk3 
spi'cial  instructions  to  be  given  to  the  jury,  the  court  must 
either  give  such  instruction,  as  requested,  or  refuse  to  do 
feo,  or  give  the  instruction  with  a  incjAlification.  in  such 
manner  that  it  may  distinctly  aF)pcar  what  instructions 
were  given  In  whole  or  in  part.     En.  March  11,  1872. 

ExcaptioDs:   Post,  sec.  C46. 

§  610.  View  by  jury  of  the  premises.  When,  in  the 
opinion  of  the  court,  it  is  proper  for  the  Jury  to  have  a 
view  of  the  property  which  is  the  subject  of  litigation,  or 
of  the  place  in  which  any  material"  fact  occurred,  it  may 
order  them  to  be  conducted,  in  a  body,  under  the  charge 
of  an  officer,  to  the  place,  which  shall  be  shown  to  them 
by  some  person  appointed  by  the  court  for  that  purpose. 
While  the  jury  are  thus  absent,  no  person,  other  than  the 
person  so  appointed,  shall  speak  to  them  on  any  subject 
connected  with  the  trial.     En.  March  11,  1872. 

Cal.  Rep.  at     49,  609;   50,  557. 

§  611.     Admonition    when    jury    permitted    to   separate. 

If  the  jury  are  permitted  to  separate,  either  during  the 
trial  or  after  the  case  is  submitted  to  them,  they  shall 
be  admonished  by  the  court  that  it  is  their  duty  not  to 
converse  with  or  suffer  themselves  to  be  addressed  by  any 
other  person  on  any  subject  of  the  trial,  and  that  it  is 
their  duty  not  to  form  or  express  an  opinion  thereon  until 
the  case  is  finally  submitted  to  them.     En.  March  11,  1872. 

Cal.  Rep.  Cit  54,  547. 

§  612.    Jury  may  take  with  them  certain  papers.     Upon 

retiring  for  deliberation,  the  jury  may  take  with  them  all 
papers  which  have  been  received  as  evidence  in  the  cause, 
except  depositions  or  copies  of  such  papers  as  ought  not. 


223  TRIAL  BY   JURT.  §§  S13.  614 

In  the  opinion  of  the  court,  to  be  taken  from  the  person 
having  them  in  possession;  and  they  may  also  take  with 
them  notes  of  the  testimony  or  other  proceedings  on  the 
trial,  taken  by  themselves,  or  any  of  them,  but  none  taken 
by  any  other  person.     En.'  March  11,  1872. 

Cal.  Rep.  Cit.     7C,  19G;     83.  648;     88,  648;    146,  481. 

Prac  Act,  sec.  1C7.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     1,  177;     1,  179;     36,  179. 

§  613.  Deliberation  of  Jury,  how  conducted.  When  the 
case  is  finaJly  submitted  to  the  jury,  they  may  decide  in 
court  or  retire  for  deliberation;  if  they  retire,  they  must 
be  kept  together,  in  some  convenient  place,  under  charge 
of  an  officer,  until  at  least  three-fourths  of  them  agree 
upon  a  verdict  or  are  discharged  by  the  court.  Unless 
by  order  of  the  court,  the  officer  having  them  under  his 
charge  must  not  suffer  any  communication  to  be  made 
to  them,  or  make  any  himself,  except  to  a-sk  them  if  they 
or  three-fourths  of  them  are  agreed  upon  a  verdict,  and  he 
must  not,  before  their  verdict  is  rendered,  cammunicate 
to  any  person  the  state  of  their  deliberations,  or  the  ver- 
dict agreed  upon.     En.  March  11,  1872.     Am'd.  1880,  10. 

Prac.  Act,  sec.  166.     En.  April  29,  1851, 

Three-fourths,  agreement  of:  See  Const.  Cal.,  art.  1, 
sec.  7. 


§  614.  May  come  into  court  for  further  Instructions. 
After  the  jury  have  retired  for  deliberation,  if  there  be  a 
disagreement  between  them  as  to  any  part  of  the  testi- 
mony, or  if  they  desire  to  be  informed  of  any  point  of  law 
arising  in  the  cause,  they  may  require  the  officer  to  con- 
duct them  into  court.  Upon  their  being  brought  into 
court,  the  information  required  must  be  given  in  the  pres- 
ence of,  or  after  notice  to,  the  parties  or  counsel.  En. 
March  11,  1872. 

Prac.  Act,  sec.  168.     Ea.  April  29,  1851. 

Cal.  Rep.  Cit     28,  1C9. 

Holidays,  Sundays,  etc. — Instructions  may  be  given  to 
Juries  deliberating  on:  Ante,  sec  134,  subd.  L  On  non- 
judicial days:    Idem. 


{g  615-«W  TniAI.   BY   Jl'RT.  284 

9  815.  Proceedings  in  case  a  juror  becomes  sick.  If, 
after  the  impanoling  of  tJie  j'iry,  and  before  verdict,  a 
Juror  booonios  sick,  so  as  to  be  uuable  to  perform  his 
duty,  the  court  may  ord«'r  him  to  be  diacharRed.  In  that 
case  the  trial  may  proceed  with  the  other  jurors,  or  an- 
other juror  may  be  sworn  ami  the  trial  be^in  anew;  or 
the  jury  may  be  discharged  and  a  new  jury  then  or  after- 
ward impaneled.     En.  March  11,  1872. 

Prac.  Act,  sec.   1C4.     En.   April  29,  1851. 
Cal.  Rep.  Cit.     1,  337. 

§  616.  When  prevented  from  giving  verdict,  the  cause 
may  be  again  tried.  In  all  casos  where  the  jury  are  dis- 
charged, or  prevented  from  giving  a  verdict,  by  reason  of 
accident  or  other  cause,  during  the  progress  of  the  trial, 
or  after  the  cause  is  submitted  to  them,  the  action  may  b« 
tigaAn  tried  im;mediately,  or  at  a  future  time,  as  the  court 
may   direct.     En.   March   11,   1872. 

CaJ.   Rep.  Cit     114,  478. 

Prac.  Act,  sec.  1C9.  En.  April  29,  1851. 

§  617.  While  jury  are  absent,  court  may  adjourn  from 
time  to  time.  Sealed  verdict.  While  the  jury  are  absent 
the  court  may  adjourn  from  time  to  time,  in  respect  to 
other  business;  but  it  is  nevertheless  open  for  every  pur- 
pose connected  with  the  cause  submittetl  to  the  jury  until 
a  verdict  is  rendered  or  the  jury  discharged  The  court 
may  direct  the  jury  to  bring  in  a  sealed  verdict,  at  the 
opening  of  the  court,  in  case  of  an  agreement  during  a 
recess  or  adjournment  for  the  day.  En.  March  11,  1872. 
Am'ti.  1880,  10. 

Oal.  Rep.  Cit.     50,  649. 

Prac.  Act,  sec.  170.    En.  April  29,  1851. 

§  618.  Verdict,  how  declared.  Form  of.  Polling  the 
jury.  When  the  jury,  or  three-fourths  of  thom,  have 
agreed  upon  a  verdict,  they  must  be  conducted  into  court, 
their  names  called  by  the  clerk,  and  the  verdict  rendered 
hy  their  foreman;  the  verdict  must  be  in  writing,  signed 
by  the  foreman,  and  must  be  read  by  the  clerk  to  the 
Jury,  and  the  inquiry  made  w'hether  it  is  their  verdi't. 
''  ither  party  may  require  the  jury  to  be  polled,  which  is 


225  TRIAL     BY     JURY.  5§  619,  624 

done  by  the  court  or  clerk  asking  each  juror  if  it  is  his 
verdict;  if  upon  such  inquiry  or  polling,  more  than  one- 
fourth  of  the  jurors  disagree  thereto,  the  jury  must  be 
sent  out  again,  but  if  no  such  disagreement  be  expressed, 
the  verdict  is  complete  and  the  jury  discharged  from  the 
case.     En.  March  11,  1872.     Am'd.  1880,  10. 

CaL  Rep.  Cit.     80,  82;    134,  11. 

Prac.  Act,  sec.  171.    En.  April  29,  1851. 

Prac.  Act,  sec  173.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     8,  618. 

Verdict  received  on  nonjudicial  day:   Ante,  sec.  134. 

§  619.  Proceedings  when  verdict  is  informal.  When 
the  verdict  is  announced,  if  it  is  informal  or  insufficient 
in  not  covering  the  issue  submitted,  it  may  be  corrected 
by  the  jury  under  the  advice  of  the  court,  or  the  jury  may 
be  again  sent  out.    En.  March  11,  1872. 

CaL  Rep.  CIL     66,  217. 

Prac.  Act,  sec  172.    En.  April  29,  1851. 


ARTICLE  IIL 

THE   VERDICT. 

§  624.    Genera!    and   special   verdicts   defined. 

S  625.    When   a   general   or  special   verdict   may  be   rendered. 

§  626.    Verdict    In    actions    for    recovery    ol    money    or    on    establishing 

counterclaim. 
S  627.    Verdict    in    actions    for    Uie   recovery    of   specif;   i>ersonal    proj)- 

erty. 
{  628.     Entry    of   verdict. 

S  624.  General  and  special  verdicts  defined.  The  ver- 
dict of  a  jury  is  either  general  or  special.  A  general  ver- 
dict is  that  by  which  they  pronounce  generally  upon  all 
or  any  of  the  issues,  either  in  favor  of  the  plaintiff  or  de- 
fendant: a  special  verdict  is  that  by  which  the  jury  find 
the  facts  only,  leaving  the  judgment  to  the  court.  The 
special  verdict  must  present  the  conclusions  of  fact  as  es- 
tablished by  evidence,  and  not  the  evidence  to  prove  them; 
and  those  conclusions  of  fact  must  be  so  presented,  as  that 
nothing  shall  remain  to  the  court  but  to  draw  from  them 
conclusions  of  law.     En.  March  11.  1872. 

Code  Civil  Proe.— 14. 


}{   C2L-C::n  TRIAL    BY    JURT.  SI 

Cal.  Rep.  Cit.     74.  208;     91,  210;     134,  IL 
Prac.  Act,  sec.  174.     En.  April  29,  185L 
Cal.  Rep.  Cit.    19.  105. 

General  or  special  verdict,  when  may  be  rendered:  Post, 
sec.  C25. 

MiscoQduct  of  jury:   Sec.  657,  subd.  2. 

§  625.  When  a  general  or  special  verdict  may  be  ren- 
dered. In  an  action  for  the  recovery  of  money  only,  or 
spK'ific  real  property,  the  jury,  unless  instructed  by  the 
court  to  render  a  special  verdict,  may  in  their  discretion 
render  a  Kcneral  or  special  verdict.  In  all  cases  the  court 
must,  upon  the  request  in  writing  of  any  of  the  parties, 
direct  the  Jury  to  find  a  special  verdict  in  writing  upon 
all  or  any  of  the  i.ssues  and  in  all  cases  must  instruct  them 
upon  the  request  in  writing  of  any  of  the  parties.  If  they 
render  a  general  verdict,  to  Gnd  upon  particular  questions 
of  fact,  to  be  stated  in  writing,  and  must  direct  a  written 
finding  thereon.  The  special  verdict  or  finding  must  be 
filed  with  the  clerk  and  entered  upon  the  minutes.  Where 
a  special  finding  of  facts  is  Inconsistent  with  the  general 
verdict,  the  former  controls  the  latter  and  the  court  must 
give  judgment  accordingly.  En.  March  11,  1872.  Am'd. 
1906,  56. 

Cal.  Rep.  Cit  65,  51;  72,  381;  77,  590;  96,  648;  97, 
418;  99,  124;  103,  471;  104,  641;  126,  365;  128.  208; 
130,  652;    135,  612. 

Prac.  Act,  sec.  175.     EJn.  April  29,  1851.     Am'd.  1854,  62. 

Cal.  Rep.  Cit.     4,  9;    19,  105;    28.  418;    28,  420. 

§  626.  Verdict  In  actions  for  recovery  of  money  or  on 
establishing  counterclaim.  When  a  verdict  is  found  for 
the  plaintiff,  in  an  action  for  the  recovery  of  money,  or  for 
the  defendant  when  a  counterclaim  for  the  recovery  of 
money  is  established,  exceeding  the  amount  of  the  plain- 
tiff's claim  as  established,  the  jury  must  also  find  the 
amount  of  the  recovery.    En.  March  11.  1872. 

Cal.  Rep.  Cit     54,  280;    61,  120;    77,  427;    85,  193, 

Prac.  Act,  sec  176.    En.  April  29,  1851. 

Cal.  Rep.  Cit.     19,  658;    36,  176;    41.  59. 

§  627.  Verdict  in  actions  for  the  recovery  of  specific 
personal  property.     In  an  action  for  the  recovery  of  speci- 


ST  TRIAL   BT   THE    COtTRT.  §§  G28,  631 

fic  personal  property,  if  the  property  has  uot  been  deliv- 
ered to  the  plaintiff,  or  the  defendant,  by  his  answer,  claim 
a  return  thereof,  the  jury,  if  their  verdict  be  in  favor  ol 
the  plaintiff,  or,  if  being  in  favor  of  the  defendant,  they 
also  find  that  he  is  entitled  to  a  return  thereof,  must  find 
the  value  of  the  property,  and,  if  so  instructed,  the  value 
of  specific  portions  thereof,  and  may,  at  the  same  time,  as- 
sess the  damages,  if  any  are  claimed  in  the  complaint  or 
answer,  which  the  prevailing  party  has  sustained  by  reason 
of  the  taking  or  detention  of  such  property.  En.  March 
11,   1872.     Am'd.  1873-4,  31L 

Cal.  Rep.  Cit.     54,  194;   56,  459;   56,  460;   65,  238;  87,  347; 
89,  504;    90,  560;    101,  239;    108,  145;   126,  40. 

Prac.  Act,  sec.  177.    En.  April  29,  1851. 

Cal.  Rep.  Cit    7,  571;   21,  280;   24,  149;   24,  151;  38,  584; 
110,  277. 

Jury  must  find,  etc.:  See  post,  sec.  667. 

§  628.  Entry  of  verdict.  Upon  receiving  a  verdict,  an 
entry  must  be  made  by  the  clerk  in  the  minutes  of  the 
court,  specifying  the  time  of  trial,  the  names  of  the  jurors 
and  witnesses,  and  setting  out  the  verdict  at  length;  and 
where  special  verdict  is  found,  either  the  judgment  ren- 
dered thereon,  or  if  the  case  be  resei*ved  for  argument  or 
further  consideration,  the  order  thus  reserving  It.  En. 
March   il,   1872. 

Cal.  Rep.  Cit     85,  579;    98,  363;   99,   515. 

Prac.  Act,  sec.  178.     En.  April  29,  1851. 

Cal.  Rep.  Cit    28,  420. 

CHAPTER  V. 

TRIAL  BY  THE  CX>URT. 

8  sn.    "W^p-n   and  Tiow  trial  by  Jury  may  be  waived. 

5  632.     TJi»in    trial   by   court,    decision   to   be   in   wilting  and   fflcsj   within 

twenty  days. 
E  633.    Facts   found   and   conclusions  of  law  must  be  separately  stated. 

Judgment   on. 
§  634.     Findings   may  be   waived,   how. 
I  C35.     Finding,    how    prepared.     (Repealed.) 
§  636.     Proceedings   after    determination   of   issue   of  law. 

§  631.    When  and    how  trial   by    jury    may  be    waived. 

Trial  by  jury  may  be  waived  by  the  several  parties  to  an 
issue  of  fact  in  actions  arising  on  contract  or  for  the  re- 


J5  cr-634  TKIAL    BY    THE    COURT.  Hi 

covery  of  spoclflc  real  or  personal  property,  with  or  with- 
out damages,  and  with  the  assent  of  the  court  In  other  ac- 
tions, in  rcanner  following: 

1.  By  failing  to  appear  at  the  trial. 

2.  By  written  consent,  In  person  or  by  attorney,  flled 
with  the  clerk. 

3.  By  oral  consent,  In  open  court,  entered  In  the  min- 
utes.    En.  March  11.  1872.     Amd.  1873-4,  311. 

Cal.  Rep.  Cit.     60,  366;  70,  448;  83.  231;   88,  183;   101.  641; 

104.  467;  lis.  248;   119,  248;   130,  642. 
Prac.  Act,  sec.  179.     En.  April  29,  1851. 
Cal.  Rep.  Cit     4,  113;   16,  433;   18,  411;   18.  443. 
Waiver  of  jury  trial:  See  Ck>n8t.  Cal.,  art.  1,  soc.  7. 

§  632.  Upon  trial  by  court,  decision  to  be  In  writing  and 
filed  within  thirty  days.  Upon  the  trial  of  a  question  of 
fact  by  the  court,  its  dt'cision  must  be  given  In  vmting 
and  filed  with  the  clerk  within  thirty  days  after  the  cause 
Is  submitted  for  decision.  En.  March  11,  1872.  Am'd.  1873- 
4,  312. 

Cal.   Rep.  Cit     63,   37;    63,   55;     64,   56;    64,   92;    65,   117; 

65.   259;    65,   530;    66,   412;    68.   603;    69,   218;    70,   551; 

81.   341;    84,   532;    87,   571;    89.   487;    90.   327;    95,   348; 

98.  206;  99.  347;   108,  481;  110,  75;   116,  599;   119,  383; 

125,  204;  139,  259;   140,  675. 

§  633.     Facts    found    and    conclusions  of    law    must  be 

separately  stated.  Judgment  on.  In  giving  the  decision, 
the  facts  found  and  the  conclusions  of  law  must  be  sepa^ 
rately  stated.  Judgment  upon  the  decision  must  be  en- 
tered accordingly.     En.   March  11,   1872. 

Cal.  Rep.   Cit     49,   555;    61,   334;    63,   37;    63.    55;    64.   56 
65.   117;    05.   530;    66,  318;    66,   406;    66.   412;    68.   159 
68.   454;    69,   218;    70,   551;    81,   341;    84,   532;    89.    487 
90,  327;  91,  598;    95,  348;    98.  206;    98,  362;    99,  347 
102.  623;  106,  539;  107,  426;  108,  455;  108.  481;  108,  482 
110,  75;  110,  76;  116,  599;  119,  383;  125,  204;   138,  330 
140,  481;    140,   675. 
Prac.   Act,   sec   180.    En.   April   29,   1851.    Am'd.    1865-6, 
B44. 
Cal.  Rep.  Cit  2,  305;   7,  261;   8,  619;   18,  448;   28,  70;   28 
305;    31,   98;    33,    255;    33,   330;    34,    134;    34,    226;    35* 
87;   38,  530;   39,  337;   46,  372;   89,  488;   105,  693. 

§  634.  Findings  may  be  v/aived,  how.  Findings  of  fact 
may  be  waived  by  the  several  parties  to  an  issue  of  fact: 


iSS  TRIALS    BY    REFEREES.  §§  eSO-bSS 

1.  By  failing  to  appear  at  the  trial; 

2.  By  consent  in  writing,  filed  with  the  clerk; 

3.  By  oral  consent  in  open  court,  entered  in  the  minutes. 
En.  March  11,  1872. 

CaJ.  Rep.  Cit.  51,  2G3;  G3.  37;  67,  54;  68,  240;  83,  233; 
85,  153;  91,  587;  91,  598;  94.  56;  90,  41;  99,  515;  104, 
247;    110,  32;    146,  213. 

§  635.     Findings,      how      prepared.        (Repealed.)        En- 
March  11,   1872.     Am'd.   1873-4,   312.     Rep.   1875-6,  91. 
Cal.   Rep.   Cit.     57,  537. 

§  636.  Proceedings  after  determination  of  Issue  of  law. 
On  a  judgment  for  the  plaintiff  upon  an  Issue  of  law,  he 
may  proceed  in  the  manner  prescribed  by  the  first  two 
subdivisions  of  section  five  hundred  and  eighty-five,  upon 
the  failure  of  the  defendant  to  answer.  If  judgment  be 
for  the  defendant  upon  an  issue  of  law,  and  the  talking  of 
an  account  or  the  proof  of  any  fact  be  necessary  to  enable 
the  court  to  complete  the  judgment,  a  reference  may  be 
ordered  as  irr  that  section  provided.     En.  March  11,  1872. 

Cal.   Rep.   Cit.     103,   207. 

Prac.  Act,  sec.  181.     En.  April  29,  1851. 

Issue  of  law:  Ante,  sec.  589;  when  a  bar:  Post,  sec.  1908. 

Reference:  Post,  sees.  638  et  seq. 

Leave  to  answer,  after  defendant's  demurrer  overruled: 
Ante,   sec.   472. 

Default,   judgment   by:  Ante,   sec.    585, 

Judgment  generally:  Post,  sec.  664. 


CHAPTER  VI. 

OF  REFERENCES   AND  TRIALS   BT   REFERFE3. 

S  B3S.  Reference    ordered    upon    ai^rcement    of   parties.    In    what    casea. 

§  GS9.  Rpfprence   orrlpred    on    motion,    In    what   cases. 

§  <V40.  Number   of   referees,    qnallflcatlons,    etc. 

§  641.  Either   party    may    object.     Grounds   of   objection. 

§  (542.  Objections,   how  disposed   of. 

§  643.  Referees   to    report    within    twenty    days. 

§  644.  Effect   of  referee's   finding. 

§  645.  How  excepted   to,    etc. 

§  638.  Reference  ordered  upon  agreement  of  parties,  in 
what  cases.  A  reference  may  be  ordered  upon  the  agree- 
ment of  the  parties  filed  with  the  clerk  or  entered  in  the 
minutes: 


§§  C3D,  640  TIIIALS   L!Y   REFEUEE3.  250 

1.  To  try  any  or  all  of  the  issues  in  an  action  or  pro- 
ceeding, whether  of  fact  or  of  law,  and  to  report  a  finding 
and   judgment   thereon; 

2.  To  ascertain  a  fact  necessary  to  enable  the  court  to 
determine  an  action  or  proceeding.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  68,  534;  89,  520;  99,  515;  103,  20;  123,  41; 
123,  99;   123,  101.     Subd.  1—136,  78. 

Prac.  Act,  sec.  182.  En.  April  29,  1851.  Am'd.  1865-6, 
844. 

Cal.  Rep.  Cit.  2,  94;  20,  93;  24,  42C;  26,  267;  35,  552;  46, 
146;    46,  149;    46,  150. 

Reference  in  general,  court  commissioners:  Ante,  sec. 
259,  subd.  2;  fees  for:  Post,  sec.  1028;  private  trial:  Sec. 
125;    compulsory;   See  next  section. 

Referees,  number,  etc.:  Post,  sec.  640;  objections  to: 
Post,  sees.  641,  642;    report  of:   Post,  sees.  643-45. 

Trial  by  referee:   Post,  sec.  1053. 

§  639.  Reference  ordered  on  motion,  In  what  cases. 
When  the  parties  do  not  consent,  the  court  may,  upon  the 
application  of  either,  or  of  its  own  motion,  direct  a  refer- 
ence in  the  following  cases: 

1.  When  the  trial  of  an  issue  of  fact  requires  the  exam- 
ination of  a  long  account  on  either  side;  in  which  case  the 
referees  may  be  directed  to  hear  and  decide  the  whole 
issue,  or  report  upon  any  specific  question  of  fact  involved 
therein; 

2.  When  the  taking  of  an  account  is  necessary  for  the 
Information  of  the  court  before  judgment,  or  for  carrying 
a  judgment  or  order  into  effect; 

3.  When  a  question  of  fact,  other  than  upon  the  plead- 
ings, arises  upon  motion  or  otherwise,  in  any  stage  of  the 
action; 

4.  When  it  Is  necessary  for  the  information  of.  the  court 
in  a  special  proceeding.     En.  March  11,  1872. 

Cal    Rep.  Cit.     57,  643;  79,  702;  99,  423;   103,  20;   109,  255; 

122,  156;   123,  41;   125,  50. 
Prac.  Act,  sec.  183.     En.  April  29,  1851. 
Cal.  Rep.  Cit.     24,  425;   24,  426;   41,  405. 
Reference   on  proceedings   supplementary   to   execution: 
Sec.  714,  post 

§  640.  Number  of  referees,  qualifications,  etc.  A  refer- 
ence may  be  ordered  to  any  person  or  persons,  not  exceed- 


2a  TRIALS    BY    RETFEREES.  5  §  641,  643 

Ing  three,  •  agreed  upon  by  the  parties.  If  the  parties  do 
not  agree,  the  court  or  judge  must  appoint  one  or  more 
referees,  not  exceeding  three,  who  reside  in  the  county  in 
which  the  action  or  proceeding  is  triable,  and  against 
whom  there  is  no  legal  objection,  or  the  reference  may  be 
made  to  a  court  commissioner  of  the  countj  where  the 
cause  is  pending.     En.  March  11,  1872. 

Prac.    Act,   sec.   184.     En.   April   29,   1851.    Am'd.   1865-6, 
845. 

Cal.  Rep.  Cit     70,  301. 

Reference  ordered:  Ante,  sees.  638,  639. 
Three  referees,  two  may  act:   Post,  sec.  1053, 
Court  commissioner:  Ante,  sec.  259,  subd.  2. 


§  641.     Either  party  may  object.     Grounds  of  objection. 

Either  party  may  object  to  the  appointment  of  any  person 
as  referee,  on  one  or  more  of  the  following  grounds: 

1.  A  want  of  any  of  the  qualifications  prescribed  by 
statute  to  render  a  person  competent  as  a  juror; 

2.  Consanguinity,  or  affinity,  within  the  third  degree,  to 
either  party,  or  to  any  judge  of  the  court,  in  which  the  ap- 
pointment shall  be  made; 

3.  Standing  in  the  relation  of  guardian  and  ward,  master 
and  servant,  employer  and  clerk,  or  principal  and  agent, 
to  either  party;  or,  being  a  member  of  the  family  of  either 
party;  or  a  partner  in  business  with  either  party;  or  being 
security  on  any  bond  or  obligation  for  either  party; 

4.  Having  served  as  a  juror  or  been  a  witness  on  any 
trial  between  the  same  parties  for  the  same  cause  of 
action ; 

5.  Interest  on  the  part  of  such  person  in  the  event  of 
the  action,  or  in  the  main  question  involved  in  the  action; 

6.  Having  formed  or  expressed  an  unqualified  opinion 
or  belief  as  to  the  merits  of  the  action; 

7.  The  existence  of  a  state  of  mind  in  such  person 
evincing  enmity  a£-alnst  or  bias  to  either  party.  En.  March 
11,  1872.     Am'd.   1897.  60. 

Prac.  Act,  sec.  185.    En.  April  29,  1851. 

§  642.  Objections,  how  disposed  of.  The  objections 
taken  to  the  appointment  of  any  person  as  referee  must  be 
heard   and   disposed   of   by   the   court.    Affidavits  may   be 


:;   rtl-Btr.  TRIALS    PT    RRFFURnS.  «I2 

read   and   wffnosscs  examined  as  to  such  objections.    En, 
March  11,  1872. 

Cal.   Rep.   Clt.     104,  247. 

Prac.   Art.  sec.  186.     En.  April  29,  1851. 
Objections:    Ante,  see  sec.  641. 

5  643.  Referees  to  report  within  twenty  days.  The  ref- 
erees or  commissioner  mu.'^t  report  thfir  findings  In  writing 
to  the  court,  within  twenty  days  after  the  testimony  Is 
closed,  and  the  facts  found  and  conclusions  of  law  must  be 
separately  stated   therein.     En.   March   11,  1872. 

Prac.  Act,  sec.  187.  En.  April  29,  1851.  Am'd.  1865-6, 
845. 

Cal.  Rep.  Clt     22,  473;  84,  35;  41,  405;  82,  482;   103,  21. 

Court  commissioner  as  referee:  Ante,  sec.  259,  subd.  2. 
Referees,  where  three,  all  must  meet,  but  two  can  act: 
Post,  sec.  1053. 
Enforcing  order:   Ante,  sec.  128,  subd.  2. 
Findings,  effect  of:   Post,  sec.  645. 

§  644.  Effect  of  referee's  finding.  The  finding  of  the 
referee  or  commis-sloner  upon  the  whole  issue  must  stand 
as  the  finding  of  the  court,  and  upon  filing  of  the  finding 
with  the  clerk  of  the  court,  judgment  may  be  entered  there- 
on In  the  same  manner  as  If  the  action  had  been  tried  by 
the  court.     En.  March  11,  1872. 

Cal.  Rep.  Clt     103,  20. 

§  645.  How  excepted  to,  etc.  The  findings  of  the  ref- 
eree or  commissioner  may  be  excepted  to  and  reviewed  In 
like  manner  as  If  made  by  the  court.  When  the  reference 
is  to  report  the  facts,  the  findings  reported  has  the  effect 
of  a  special  verdict     En.  March  11,  1872. 

Cal.   Rep.    Clt     104,   247. 

Exceptions,  generally:  Post,  sees.  646  et  seq.;  new  trials: 
Post,  sees.  656  et  seq.;  court  commissioner's  report,  time 
and  mode  of  excepting  to:  Aiite,  sec.  259,  subd.  2. 


23t  TRIALS    IN    GENERAU  83  646,  9« 

CHAPTER  VII. 

PROVISIONS   RELATING  TO  TRIALS   IN   GENKRAU 

Article    I.     Exceptions,    §§    646-663. 

IL    New  Trials,    {§    656-663^. 

ARTICLE  I. 

EXCEPTIONS.  • 

8  646.    Exceptions   may  be   taken.    Time   when   taken,   eta. 

6  647.     What   deemed  excepted  to. 

§  648.     Exception,     form    of. 

I  649.    Exceptions  •  signed   by   Judge   and   filed    with   clerk. 

§  650.    Exceptions   not   presented    at    time   of   nallng.    Notice   to   adverse 

party,  how  settled  upon,  etc. 
§  651.  Exceptions  after  Judgment,  etc. 
§  C52.    When    exception    Is    refused,    application    to    atipremo    court    to 

prove  the  same,  etc. 
§  653.    Proceedings  where  Judge  ceases  to  hold  offlctt. 

§  646.  Exceptions  may  be  taken.  Time  when  taken, 
etc.  An  exception  is  an  objection  upon  a  matter  of  law  to 
a  decision  made,  either  before  or  after  judgment,  by  a  court, 
tribunal.  Judge,  or  other  Judicial  officer,  in  an  action  or 
proceeding.  The  exception  must  be  taken  at  the  time  the 
decision  is  made,  except  as  provided  in  sec.  647.  En. 
March  11,  1872.     Am'd.  1873-4,  312;  1875-6,  91. 

Cal.  Rep.  Cit.  45,  222;  61,  111;  57.  239;  68,  175;  61,  163; 
63,  804;  70,  581;  79.  408;  87,  391;  80,  476;  81,  609; 
81,  639;  83,  233;  87,  391;   90,  258;  108,  141;  122,  476. 

Prac.  Act,  sec.  188.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  12,  493;  20,  93;  28,  174;  28,  263;  82,  317; 
32,  322;   33,  553;   34,  686;  85,  257;  41,  317. 

Matters  deemed  excepted  to:  Post,  sea  647. 
Amendments  to:  Post,  sec.  650. 

§  647.  What  deemed  excepted  to.  The  verdict  of  the 
jury,  the  final  decision  in  an  action  or  proceeding,  an 
Interlocutory  order  or  decision,  finally  determining  the 
rights  of  the  parties,  or  some  of  them,  an  order  or  decision 
from  which  an  appeal  may  be  taken,  an  order  sustaining 
or  overruling  a  demurrer,  allowing  or  refusing  to  allow  an 
amendment  to  a  pleading,  striking  out  a  pleading  or  a 
portion  thereof,  refusing  a  continuance,  an  order  made 
upon  ex  parte  application,  and  an  order  or  decision  made 


gj  C«,  ill  TRIALS  IN   anNKKAL..  m 

In   the  absence  of  a  party,  nre  dcomod   to  hnve  bcon  ex- 
cepted to.     En.  Marrh  11.  1872.     Am'd.   1875-6.  92. 

Cal.  Rep.  CIL  47.  166;  57.  243;  60.  252;  63.  304;  63,  509; 
71  309;  77.  648;  82.  607;  83.  232;  8C.  212;  90.  61; 
98.  2S3:  98.  417;  109.  120;  109.  121;  112.  571;  122.  476; 
123,  79;   123,  80;   136.  480;   142.  682;   146.  569;  146.  552. 

Prac.   Act,  sec.  191.     En.  April  29,  2S51, 

Cal.  Rop.  Cit     2.  325;   34,  686. 

§  648.  Exception,  form  of.  No  pnrtlcnlnr  form  of  ex- 
ception Is  rpqiilred,  but  when  the  exception  1h  to  the  ver- 
dict or  (h'l-lsliin.  upon  the  grouml  of  the  InHUlUcIency  of 
the  ovI(ltni-e  U)  JuHtlfy  It,  the  olijcrllon  must  8p(>clfy  the 
particulars  in  which  such  evidence  Is  iilleKed  to  be  Inauffl- 
clent.  The  objection  must  be  stated  with  so  much  of  the 
evidence  or  other  matter  as  Is  neces.Mary  to  explain  It, 
and  no  more.  Only  the  substance  of  the  reporter's  notes 
of  the  evidence  shfiU  be  htated.  Documents  on  file  In  the 
action  or  proceeding  may  be  coplerl,  or  the  substance 
thereof  stated,  or  a  reference  thereto.  siitTlcIent  to  Identify 
them,  may  be  made.  En.  March  11,  1872.  Am'd.  1876-6, 
92. 

Cal.  Rep.  CIL  46.  634;  49.  45;  49.  R.'i.^j;  49.  5r.6;  50.  503; 
64,  130;  57,  239;  61.  608;  67.  3u4;  C8,  591;  84.  531; 
84,  532;  89,  24;  89.  140;  90.  62;  90,  259;  02.  239;  99, 
226;  104.  211;  108.  455;  112,  607;  117,  184;  122,  407; 
130,  418;    132,  614;    144,  540;    146,  COS. 

Prnc.  Act,  sec.  190.     En.  April  29,  185L 

Cal.  Rep.  CIL     28.  263;  33,  553. 

§  649.  Exceptions  signed  by  Judge  and  filed  with  clerk. 
A  bill  containing  the  exception  to  any  decision  may  be 
presented  to  the  court  or  judge  for  settlement,  at  the  time 
the  decision  Is  made,  and  after  having  been  settled,  shall 
be  signed  by  the  Judge  and  filed  with  the  clerk.  When  the 
decision  excepted  to  Is  made  by  a  tribunal  other  than 
a  court,  or  by  a  Judicial  officer,  the  bill  of  exceptions  shall 
be  presented  to,  and  settled  and  signed  by  such  tribunal 
or  officer.     En.  March  11,  1872;   1875-6,  92, 

Cal.  Rep.  CIL  47.  641;  50.  445;  54.  417;  67.  5^3;  57.  504; 
57.  505;  66,  408;  80,  476;  81,  610;  S3.  160;  83.  161; 
83.  162;  83.  163;  96.  486;  98,  136;  115.  300;  120.  88; 
122,  2:  122.  68;  122.  69;  127,  584;  128.  138;  128.  679; 
128,  580;   138,  604;   138,  605;   141.  152;  142,  184. 


135  TRIALS    IN    GENERAU  {  650 

Prac.  Act,  sec.  189.  En.  April  29.  1S51.  Am'd.  18C3,  360. 

Cal.  Rep.  Cit.  28,  174;  28,  263;  32.  317;  32,  322;  33,  553; 
35,  257;  49.  266;  70,  301. 

§  650.  Exceptions  not  presented  at  time  of  ruling.  No- 
tice to  adverse  party,  how  settled  upon,  etc.  When  a 
party  desires  to  have  exceptions  taken  at  a  trial  settled 
in  a  bill  of  exceptions,  he  may,  within  ten  days  after  the 
entry  of  judgment,  if  the  action  were  tried  with  a  jury, 
or  after  receiving  notice  of  the  entry  of  judgment,  if  the 
action  were  tried  without  a  jury,  or  such  further  time  as 
the  court  In  which  the  action  is  pending,  or  a  judge  there- 
of, may  allow,  prepare  the  draft  of  a  bill,  and  serve  the 
Bame,  or  a  copy  thereof,  upon  the  adverse  party.  Such 
draft  must  contain  all  the  exceptions  taken  upon  which 
the  party  relies.  Within  ten  days  after  such  service  the 
adverse  party  may  propose  amendments  thereto,  and  serve 
the  same,  or  a  copy  thereof,  upon  the  other  party.  The 
propo.sed  bill  and  amendments  mast,  within  ten  days 
thereafter,  be  presented  by  the  party  seeking  the  settle- 
ment of  the  bill,  to  the  judge  who  tried  or  heard  the  case, 
upon  five  days'  notice  to  the  adverse  party,  or  be  delivered 
to  the  clerk  of  the  court  for  the  judge.  When  received  by 
the  clerk  he  must  Immediately  deliver  them  to  the  judge, 
If  he  be  in  the  county;  if  he  be  absent  from  the  county, 
and  either  party  desire  the  papers  to  be  forwarded  to  the 
judge,  the  clerk  must,  upon  notice  In  writing  of  such 
party,  lmmo<iiately  forward  them  by  mall,  or  other  safe 
channel;  if  not  thu.s  forwarded,  the  clerk  must  deliver 
them  to  the  judse  Immediately  after  his  return  to  the 
county.  When  received  from  the  clerk,  the  judge  must 
designate  the  time  at  which  he  will  settle  the  bill,  and  the 
clerk  must  immediately  notify  the  parties  of  such  designa- 
tion. At  the  time  designatPd.  the  judge  must  settle  the 
bill.  If  the  action  was  tried  before  a  referee,  the  proposed 
bill,  with  the  amendments,  if  any,  must  be  presented  to 
Buch  referee  for  settlement  within  ten  days  after  service 
of  the  amendments,  upon  notice  of  five  days  to  the  adverse 
party,  and  thereupon  the  referee  shall  settle  the  bill.  If 
no  amendments  are  served,  or  if  served  are  allowed,  the 
propo.sed  bill  may  be  pn^ented,  with  the  araendjnents,  if 
any.  to  the  judge  or  referee,  for  settlement,  without  notice 
to  the  adverse  party.  It  is  the  duty  of  the  judge  or  ref- 
eree, in  settling  the  bill,  to  strike  out  of  It  all  redundant 
rnd  useless  matter  so  that  the  exceptions  may  be  presented 
as  briefly  as  possible.  When  settled,  the  bill  must  be 
signed  by  the  Judge  or  referee,  with  his  certificate  to  the 


gi  GO.  a  TRIAL*    IN    GF.NKnAU  M 

effect  that  the  same  In  allowed,  and  shall  thon  be  filed 
with   the  clerk.     Kn.   March  11.  1872.     Ajn'd.   1873-4.  313. 

Cal.  Rep.  Clt  47.  041;  47.  C<2:  49.  511;  6C.  4C9;  67, 
604;  57.  605;  61.  255;  C3.  419;  C4.  541;  65.  236;  66, 
409;  66.  410;  66.  411;  7C.  356;  76.  595;  76.  596;  80. 
476;  81.  610;  83.  160;  83.  161;  S3.  162;  83.  163;  84. 
639;  84.  649;  8S.  151;  89.  40;  90.  62;  90.  25.S;  94. 
201;  93.  C21;  93.  623;  98.  106;  98,  lo9;  98.  ISi;;  98, 
137;  99.  651;  101,  176;  101.  177;  lf>l,  C53;  102.  441; 
105.  SC;  106.  145;  106.  497;  112.  295;  113.  375;  115, 
85;  115.  399;  115.  n.'}5:  118.  623;  119.  351;  122.  2; 
122.  69;  121.  425;  126,  678;  127.  584;  128.  46;  128. 
138;  128.  354;  128.  356;  128.  580;  129.  2HI;  129, 
282  ;  129,  555;  130.  625;  131.  409;  135.  669;  138.  604; 
138.   605;     138.   606;     141.    152;     142.    134;     112,   297; 

143,  15;    143,  17;    143,  18;     144,  540;     147,  377. 

FXirther  time:    Anto,  pec.   473;    post,  b»>o.   1054. 
New   trial,  bill  of  r.X(Oi)tiua.'?:    I'ost.  sfv,  G50,  subd.  2. 
ReQuisltes  of  bill  of  exi  o{>tiori.i:    Ante.  sfv.   648. 
Bill  of  exception  in  criminal  causee:  S«e  Pen.  Cod«,  tecab 
1171   et  scq. 

i  651.     Exceptions    tfter   judgment,     etc.     Fxeoptlons  to 

any  ibN-i.slon  m.-icif  .ift"  r  Judcrnont  may  bo  pre.sented  to  the 
jud^e  al  th*  time  of  .such  deci.slon,  and  be  settled  or  noted, 
as  provitied  in  sec.  649,  and  a  bill  thereof  may  be  presented 
and  settlr^d  afterward,  as  provided  In  sec.  050.  and  within 
like  periods  after  entry  of  tho  order,  upon  api)eal  from 
which  said  decision  Is  reviewable.  En.  March  11,  1872. 
Am'd.  1873-4,  314. 

Cal.  Rep.  Clt.  54,  417;  57,  505;  63,  304;  80,  476;  81. 
610;     98,   136;     98.   137;     U9.  383;     120,  237;     122,  69; 

144,  279;    146,  6S2. 

§  652.  When  exception  Is  refused,  appllcatfon  to  su- 
preme court  to  prove  the  same,  etc  If  the  judge  In  any 
case  refuse  to  allow  an  exception  in  accordance  with  the 
facts,  the  party  desiring  the  bill  settled  may  apply  by  pe- 
tition to  the  supreme  court  to  prove  the  same.  The  ap- 
plication may  be  made  in  the  mode  and  manner,  and 
under  such  reg:ulations  as  that  court  may  prescribe;  and 
the  bill,  when  proven,  must  be  certified  by  the  chief  Jus- 
tice as  correct,  and  filed  with  the  clerk  of  the  court  In 
which  the  action  was  tried,  and  when  so  filo<d  It  has  the 
same  force  and  effect  as  if  settled  by  the  Judge  who  tried 
the  cause.    En.  March  11,  1872. 


Bl  TRLVI^   IN    GENBRAU  55  K3.  656 

Pal    ReD    Cit      49    510;    C8.  414;    72.  229;    73,  2;    82,  481; 

82    482      83    44;     84,  232;     87.  391;     87.  392;     87.  393; 

89    591-    90    258;    90    260;    92.  653;    97.  258;    102.  441; 

??9.  29i;    129.  145;    131,  409;    147,  360;    147,  362;    147. 

570! 
8  653.     Proceedings  where   Judge   ceases  to   hold   office. 
When  the  decision  excepted  to  was  made  by  any  judicial 
officer  other  than  a  judge,  the  bill  of  exceptions  shall  be 
SrSented  tJ  such  judicial  officer  and  be  settled  and  signed 
hv  him    in  the  same  manner  as  it  is  required  to  be  pre- 
sented to   settled,  and  signed  by  a  courtor  judge.     A  judge 
or    ludirial    officer    may    settle  and   sign  a  bill   of  excep- 
?inns  after  a-s  well  as  before  he  ceases  to  be  such  judge  or 
S'i5^   officer     If    such    judge  orjudicial  officer    before 
Se  bUl  of  exceptions  is  settled,    dies,    is    renioved    from 
Sace    becomes   disqualified,  is  absent   from   the   state,  or 
JSSts  to  Sttle  the  bill  of  exception's,  or  If  no  mode  is 
^r^ded  by     aw  for  the  settlement  of  the  same,  it  shall 
^I  Iptned   and  certified   In  such   manner  as    the    supreme 
^urt  mt'  by  Itsorder  or    rules    direct.     Judges.    Judicial 
X^rs    and   the  supreme  court  shall  respectively  possess 
jfeJSiie  power,  in  settling  and  certifying  statements,  as 
s  by  this  section  confen^d  upon  them  in  BetUing  and  cer- 
tifying   biUs    of    excepUons.     En.   March    11.   1872.     Am  U. 

''caf  Rep    Cit.     66.  405;     66.  407;     66.  408-     66.   413;     67. 
331;    si  C39;    91.  485;    118.  523;    142.  215. 

ARTICLE   II. 

NEW    TRIALS. 

R  ca     New   trim    (3fflne<J.  .^„t,A 

I  CS7     When  a  new   trial   may  be  sranted. 
5  658.    On    what   papers   moved   for  contain- 

8  661      R'-cord   on  appeal. 

I  063.    New   trial   on   courfs  own   motion. 

5  063.    Vacation   of  judgment. 

5  663\4.  Notice    ot   motkm. 

S  656.  New  trial  defined.  A  new  trial  [^^^l/^-^^^f^^^ 
tlon  of  an  Issue  of  fact  ^^  th«saniecouK  after  am  ala^^^^^ 
decision  by  a  jur>-  or  court,  or  by  referees,    a^n.  ^ 

125,  16;    128,  334;    138,  559;    MO,  169,    141,  167. 


§  6,17  TniAI^    IN    GENEKAU  W 

Prac.   Act,  sec.   192.     En.   April   29,   1851. 

Oal.  Rep.  Cit.  25,  402;  25,  473;  25,  47<;  25,  47C;  25, 
477;  25,  4S8;  25,  490;  27,  110;  27,  238;  28,  339;  39, 
489;    40,  545;    45,  121. 

§  657.  When  a  new  trial  may  be  granted.  The  former 
verdict  or  oLhvr  decision  may  be  vacated  and  a  n.^w  trial 
granted,  on  the  application  of  tlie  party  aggrieved,  for 
any  of  the  following  causes,  materially  affectiug  the  sub- 
stantial rights  of  such  party: 

1.  Irregularity  in  the  proceedings  of  the  court,  jury,  or 
adverse  party,  or  any  order  of  the  conrt,  or  abuse  of  dis- 
cretion by  which  either  party  was  prevented  fro<m  having 
a  fair  trial; 

2.  Misconduct  of  the  jury;  and  whenever  any  one  or 
more  of  the  jurors  have  been  intluced  to  assent  to  any 
general  or  spe<;ial  verdict,  or  to  a  finding  on  any  question 
submitted  to  them  by  the  conrt,  by  a  resort  to  the  deter- 
mination of  chance,  such  misconduct  may  be  provod  by 
the  affidavit  of  any  one  of  the  jurors; 

3.  Accident  or  surprise,  which  ordinary  prudence  could 
not  have  guarded  against; 

4.  Newly  discovered  evidence,  material  for  the  party 
making  the  application,  which  he  could  not,  with  reasona- 
ble diligence,  have  discovered   and   produced   at  the   trial; 

5.  Excessive  damages  appearing  to  have  been  given 
under  the  influence  of  passion  or  prejudice; 

6.  Insufficiency  of  the  evidence  to  justify  the  verdict  or 
other  decision,  or  that  it  is  against  law; 

7.  Error  in  law,  occurring  at  the  trial  and  excepted  to 
by  the  party  making  the  application.     En.  March  *11,  1872. 

Cal.  Rep.  Cit.  58,  175;  61,  608;  62,  560;  65,  550;  66, 
521;  68,  376;  71,  5>58;  74,  270;  79,  703;  83,  228;  88, 
49;  90,  327;  93,  619;  102,  260;  108,  52;  108,  286; 
123,521;  124,41;  134,206;  136,484;  141,356;  143, 
27;  146,  63;  146,  682.  Subd.  1—54,  201;  60,  252; 
64,  600;  130,  205;  141,  251;  145,  146;  145,  148;  145, 
149;  145,  150;  145,  154.  Subd.  2—73,  607;  77,  590; 
98,385;  101,512;  105,635;  120,479;  125,504;  132, 
308;  134,  497;  134,  498.  Subd.  3—62,  348;  71.  309; 
83,  229;  91,  322;  106,  601.  Subd.  4—90,  518;  101, 
120;  129,  091.  Subd.  5—110,  286;  125,  144;  139.  589; 
141,  69.  Subd.  6—49.  44;  56,  17;  56,  493;  65,  259; 
67,  487;  77,  590;  90,  518;  118,  383;  120,  545;  139, 
589;    140,  169.     Subd.  7—77,  590;    86,  82;     90.  518. 

Prac.  Act,  sec.  193.    En.  April  29,  1851,    Am'd,  1862,  38. 

CaL  Rep.  Cit    127,  48. 


J39  TRIALS   IN   GENERAL.  §§  6&8,  669 

Prac.  Act,  sec.  622.    En.  April  29,  1851, 

Cal.    Rep.    Cit.     127,    48. 

How  th:3  application  is  to  be  made:  Post,  sec.  6^t. 
Discretion — Court  may  ^-ant  a  new  trial  of  its  own  mo- 
tion:  Post,  sec.  662. 
Verdict  against  law:  See  sec  662,  post 

§  658.  On  what  papers  moved  for.  "When  tlie  applica- 
ticn  is  made  for  a  cause  mentioned  in  the  first,  second, 
third,  and  fourth  subdivisions  of  the  last  section,  it  must 
be  made  upon  affidavits;  for  any  other  cause  it  may  be 
made  at  the  option  of  the  moving  party,  either  upon  the 
minutes  of  the  couit,  or  a  bill  of  exceptions,  or  a  statement 
of  the  case,  prepared  as  hereinafter  provided.  En.  March 
11,  1872.     Am'd.   1873-4,   314. 

Cal.  Rep.  Cit.  47,  59;  61,  163;  61,  295;  64,  600;  86,  82; 
90,  263;  104,  287;  113,  512;  114.  450;  118,  636;  120,  237; 
125,  503;  128,  47;  128,  138;  130,  205;  141,  251;  143,  27; 
145,  146;    146,   682. 

Mode  of  application — Affidavits,  on:  Post,  sec.  659,  subd. 
1;  minutes  of  court,  on:  Post,  sec.  659,  subd.  4;  bill  of 
exceptions,  on:  Post,  sec.  659,  subd-  2;  statement  of  case, 
on:  Post,  sec.  659,  subd.  3. 

§  659.     Notice  of  motion,  upon  whom  served,  and  what 

to  contain.  The  party  intending  to  move  for  a  new  trial 
must,  within  ten  days  after  the  verdict  of  the  jury,  if  the 
action  were  tried  by  a  jury,  or  after  notice  of  the  decision 
of  the  court  or  referee,  if  the  action  were  tried  without  a 
jury,  file  with  the  clerk  and  serve  upon  the  adverse  party 
a  notice  of  his  intention,  designating  the  grounds  upon 
which  the  motion  will  be  made,  and  whether  the  same  will 
be  made  upon  affidavits  or  the  minutes  of  the  court,  or  a 
bill  of  exceptions,  or  a  statement  of  the  case: 

1.  If  the  motion  is  to  be  made  upon  affidavits,  the  mov- 
ing party  must,  within  ten  days  after  serving  the  notice, 
or  such  further  time  as  the  court  in  which  the  action  is 
pending,  or  a  judge  thereof,  may  allow,  file  such  affidavits 
with  the  clerk,  and  serve  a  copy  upon  the  adverse  party, 
who  shall  have  ten  days  to  file  counter-affidavits,  a  copy 
of  which  must  be  served  upon  the  moving  party. 

2.  If  the  motion  is  to  be  made  upon  a  bill  of  excepticais, 
and  no  bill  lias  already  been  settled  as   hereinbefore  pro- 


I  «•  TRIAL£    IN    GKNKUAU  MO 

Tided,  tho  moving  party  shall  have  the  same  time  after 
Bervlce  of  the  notice  to  prepare  and  obtain  a  settlement 
of  a  bill  of  exceptions  as  is  provided  after  tho  entry  of 
judgment,  or  after  receiving  notice  of  such  entry  by  section 
650,  and  the  bill  shall  be  prepared  and  settled  in  a  similar 
manner.  If  a  bill  of  exceptions  has  been  already  settled 
and  fll(^d,  when  the  notice  of  motion  ia  given,  such  bill 
shall  be  used  on  the  motion. 

3.  If  the  motion  Is  to  be  made  upon  a  statement  of  the 
case,  the  moving  party  must,  within  ten  days  after  service 
of  the  notice,  or  such  further  time  as  the  court  in  which 
the  action  is  pending,  or  the  judge  thereof,  may  allow, 
prepare  a  draft  of  the  statement,  and  serve  the  same,  or  a 
copy  thereof,  upon  the  adverse  party.  If  such  proposed 
statement  be  not  agreed  to  by  the  adverse  party,  he  must, 
within  ten  days  thereafter,  prepare  amendments  thereto, 
and  serve  the  same,  or  a  copy  thereof,  upon  the  moving 
party.  If  the  amendments  be  adopted,  the  statement  shall 
be  amended  accordingly,  and  then  presented  to  the  judge 
who  tried  or  heard  the  cause,  for  settlement,  or  'b*  deliv- 
ered to  the  clerk  of  the  court  for  the  judge.  I^  not 
adopted,  the  proposed  statement  and  amendments  shall, 
within  ten  days  thereafter,  be  presented  by  the  moving 
party  to  the  judge,  upon  five  days'  notice  to  the  adverse 
party,  or  delivered  to  the  clerk  of  the  court  for  the  judge; 
and  thereupon  the  same  proceedings  for  the  settlement  of 
the  statement  shall  be  taken  by  the  parties,  and  clerk,  and 
judge,  as  are  required  for  the  settlement  of  bills  of  excep- 
tion by  section  650.  If  the  action  was  heard  by  a  referee, 
the  same  proceedings  shall  be  had  for  the  settlement 
of  the  statement  by  him  as  are  required  by  that  section  for 
the  settlement  of  bills  of  exception  by  a  referee.  If  no 
amendments  are  served  within  the  time  designated,  or,  if 
served,  are  allowed,  the  proposed  statement  and  amend- 
ments, if  any,  may  be  presented  to  the  judge  or  referee, 
for  settlement,  without  notice  to  the  adverse  party.  When 
the  notice  of  the  motion  designates,  as  the  ground  of  the 
motion,  the  insufficiency  of  the  evidence  to  justify  the  ver- 
dict or  otner  decision,  the  statement  shall  specify  the 
particulars  in  which  such  evidence  is  alleged  to  be  insuf- 
ficient. ■^'Tien  the  notice  designates,  as  the  ground  of 
the  motion,  errors  in  law  occurring  at  the  trial,  and  ex- 
cepted to  by  the  moving  party,  the  statement  shall  specify 
the  particular  en-ors  upon  which  the  party  will  rely.  If  no 
such  specifications  be  made,  the  statement  shall  be  disre- 
garded on  the  hearing  of  the  motion.    It  is  the  duty  of  the 


jfl  TRIALS   IN    GENERAL.  ;  539 

judge  or  referee,  in  settling  the  statement,  to  strike  ou-;.  of 
it  all  redundant  and  useless  matter,  and  to  make  the  state- 
ment truly  represent  the  case,  notwithstanding  the  assent 
of  the  parties  to  such  redundant  or  useless  matter,  or  to 
any  inaccurate  statement.  When  settled,  the  statement 
shall  be  signed  by  the  judge  or  referee,  with  his  certificate 
to  the  effect  that  the  same  is  allowed,  and  shall  then  be 
filed  with  the  clerk. 

4.  When  the  motion  is  to  be  made  upon  the  minutes 
of  the  court,  and  the  ground  of  the  motion  is  the  insuf- 
ficiency of  the  evidence  to  justify  the  verdict  or  other 
decision  the  notice  of  motion  must  specify  the  particulars 
In  which  the  evidence  is  alleged  to  be  insuflBcient;  and,  if 
the  ground  of  the  motion  be  errors  in  law  occurring  at  the 
trial,  and  excepted  to  by  the  moving  party,  the  notice  must 
specify  the  particular  errors  upon  which  the  party  will 
rely.  If  the  notice  do  not  contain  the  specifications  here 
indicated,  when  the  motion  is  made  on  the  minutes  of  the 
court,  the  motion  must  be  denied.  En.  March  11,  1872. 
Am'd.  1873-4,  315. 

Cal.  Rep.  Cit.  49,  555;  54.  182;  54,  545;  56,  610;  57,  231, 
57,  632;  58,  82;  59,  100;  61,  295;  63,  245;  65,  236;  66 
470;  66,  411;  66,  472;  67,  590;  67,  602;  68,  23;  68,  487; 
71,  558;  71,  559;  71,  563;  76,  596;  77,  526;  78,  108; 
80,  414;  83,  161;  86,  82;  89,  40;  90,  264;  93  201;  95, 
249;  95,  250;  97,  16;  97,  515;  98,  316;  99,  175;  99,  178; 
100,  577;  112,  7;  112,  590;  115,  26;  116,  45;  116  138; 
117,  331;  119,  187;  119,  351;  120,  545;  125,  52;  125,  116; 
126,  678;  1^,8,  4?;  128,  138;  128,  139;  129,  357;  129, 
358;  129,  360;  130,  192;  131,  574;  132,  614;  135,  119; 
13<5,  605;  138,  642;  139,  15;  143,  27.  Subd.  1—129,  691; 
141,  41.  Subd.  5;— 199,  281;  141,  153.  Subd.  3—54, 
12a;  ?4,  596;  55,  27S;  ?0,  432;  61,  608;  63,  418;  65,  260; 
66,  318;  66,  405;  66,  409;  66,  410;  66,  521;  67,  258;  68, 
73;  68,  376;  68,  641;  69,  116;  69,  644;  70,  538;  73,  476; 
74,  532;  75,  352;  76,  9;  76,  10;  76,  105;  76,  595;  76, 
35fi-  79,  683;  82,  55;  83,  320;  84,  300;  85,  165;  89  612; 
90,  71;  92,  657;  93,  20D;  95,  445;  97,  462;  101,  430;  105, 
412;  106,  145;  110,  213;  112,  7;  119,  186;  120,  566;  121, 
146;  121,  415;  122,  577;  124,  410;  125,  271;  126,  678; 
128,  308;  128,  525;  131,  409;  133,  503;  134,  484;  136, 
512;  138,  C42;  139,  652;  140,  327;  141,  68:  141,  153;  141. 
621;  141,  740;  144,  540.  Subd.  4—69,  204;  74,  59;  83. 
162;  se,  645;  94,  428;  103,  534;  113,  511;  114,  71;  126, 
52;  134,  484;  133,  605. 
Prac.  Act,  sec.  623.  En.  April  29,  1851, 
Coda    dvU    Proa— 16. 


SS  ceo.  ■«  TRIAI-S    IN    GK>rERAL..  Ml 

Bill  of  exceptions,  settling:    Ante,  sec.   G50. 

Extension  of  time:   Post,  sec.  1C54. 

Time  to  except  to  court  commissioner's  report  on  mat- 
ters other  than  issues  cf  fact  raised  by  pleadings:  Ante, 
sec.  2r)9. 

Minutes  of  court,  motion  on,  statement:  Post,  sec.  661. 

5  660.  Motion  to  be  heard  at  the  time  specified,  or  dis- 
missed. The  ap[)lication  for  a  new  trial  shall  bo  heard  at 
the  earliest  practicable  period  after  notice  of  the  motion, 
if  the  motion  is  to  be  heard  upon  the  minutes  of  the  court, 
and  in  other  cases,  after  the  affidavits,  bill  of  exceptions, 
or  statement,  as  the  case  may  be,  are  filed,  and  may  be 
brought  to  a  hearing  upon  motion  of  either  party.  On 
such  hearing  reference  may  be  had  in  all  cases  to  the 
pleadings  and  orders  of  the  court  on  file,  and  when  the 
motion  is  made  on  the  minutes,  reference  may  also  be  had 
to  any  depositions,  documentary  evidence,  and  phono- 
graphic report  of  the  testimony  on  file.  En.  March  11,  1872. 
Am'd.  1873-4,  317. 

Cal.  Rep.  Cit.  65.  260;  79.  683;  82.  55;  90.  264;  90,  265; 
102.  586;  105,  86;  114.  71;  127.  357;  127,  360;  128,  47; 
128,  325;   131,  '.09;   137.  45;   143,  27. 

Chambers,  motions  for  new  trials  may  be  heard  at:  Ante, 
sec.  166. 

§  661.  Record  on  appeal.  The  judgment  roll  and  the 
affidavits,  or  bill  of  exceptions,  or  statement,  as  the  case 
may  be,  used  on  the  hearing,  with  a  copy  of  the  order 
made,  shall  constitute  the  record  to  be  used  on  appeal 
from  the  order  granting  or  refusing  a  new  trial,  unless  the 
motion  be  made  on  the  minutes  of  the  court,  and  in  that 
case  the  judgment  roll  and  a  statement  to  be  subsequently 
prepared,  with  a  copy  of  the  order,  shall  constitute  the 
record  on  appeal.  Such  subsequent  statement  shall  be 
proposed  by  the  party  appealing,  or  intending  to  appeal, 
within  ten  days  after  the  entry  of  the  order,  or  such 
further  time  as  the  court  in  which  the  action  is  pending, 
or  a  judge  thereof,  may  allow,  and  the  same  or  a  copy 
thereof  be  served  upon  the  adverse  party,  who  shall  have 
ten  days  thereafter  to  prepare  amendments  thereto  and 
serve  the  same  or  a  copy  thereof,  upon  the  party  appealing, 
or  intending  to  appeal;  and  thereafter  proceedings  shall  be 
had.  and  within  like  periods,  for  the  settlement  of  the 
statement  as  provided  by  section  659,  but  the  statement 
shall  only  contain  the  grounds  argued  before  the  court 
for  a  new   trial,   and   so  much  of   the  evidence  or  other 


J4S  TIUALS  IN  GENERAL.  ;  662 

matter  as  may  be  necessary  to  explain  them;  and  it  shall 
be  the  duty  of  the  judge  to  exclude  all  other  evidence  or 
matter  from  the  statement.  En.  Marcli  11,  1872.  Am'd. 
1873-4,  318. 

Cal.  Rep.  Cit  55,  44;  57,  293;  64,  594;  66,  405;  66,  407 
66,  409;  66,  410;  66,  411;  66,  414;  68,  23;  69,  73 
78,  385;  79,  683;  81,  639;  86,  645;  90,  264;  92,  64 
96,  114;  105,  86;  110,  560;  110,  561;  114,  71;  114,  72 
120,  236;  122,  576;  128,  47;  128,  138;  134,  484;  138.  604 
141,  152;   144,  280;   146,  11;    147,  437. 

Prac.  Act,  sec.  194.    En.  April  29,  1851. 

Cal.  Rep.  Cit.    82,  317;   33,  554;   36,  122. 

Prac.  Act,  sec.  195.  En.  April  29,  1851.  Am'd.  1861,  590 
1863,  643;  1864,  246;  1865-6,  845. 

Cal.  Rep.  Cit.  2,  307;  3,  89;  9,  68;  9,  77;  9,  247 

22,  658;  24,  181;  24,  355;  24,  356;  25,  488;  25,  489 

26.  284;  27,  110;  27,  112;  27,  113;  27,  114;  27,  320 

27  338;  27,  339;  27,  410;  28,  261;  28,  303;  28,  311 

28,  312;  28,   413;  28,  418;  32.  172;  32,  317;  32.  318 

32,  319;  32,  320;  33,  210;  33,   472;  34,  91;  34,  239 

34,  620;  35.  257;  36,  120;  36,  122;  37,  338;  38,  202 

38,  280;  39,  33;  39,  34;  39,  253;  41.  251;  41,  404 

41.  407;  41.  518;  41.  621;  43.  322;  43,  542;  43,  576 

44,  211;  44,  212;  45,  121;  46,  4;  46,  42;  47,  164 
47.  427;  49.  341;  141.  192. 

Prac.  Act,  sec.  196.  En.  April  29,  1851.  Am'd.  1863,  361. 

Cal.  Rep.  Cit.  27.  339. 

Judgment  roll:    Post.  sec.  670. 

Affidavits,   bill  of  exceptions,  statement:   Ante,  sec.  659, 
subds.   1,  2.  3. 
Minutes  of  court:   Ante.  sec.  660 

§  662.     New  trial  on  court's  own  motion.    The  verdict  of 

a  jury  may  also  be  vacated,  and  a  new  trial  granted  by 
the  court  in  which  the  action  is  pending,  on  its  own  mo- 
tion, without  the  application  of  either  of  the  parties,  when 
there  has  been  such  a  plain  disregard  by  the  jury  of  the 
instructions  of  the  court,  or  the  evidence  in  the  case,  as  to 
satisfy  the  court  that  the  verdict  was  rendered  under  a 
misapprehension  of  such  instructions,  or  under  the  in- 
fluence of  passion  or  prejudice.  The  order  of  the  court 
may  be  reviewed  on  appeal  in  the  same  manner  as  orders 
made  on  motions  for  a  new  trial,  and  a  statement  to  be 


§§cnr.,  0<;3%  trials   IN   general.  244 

usc'tl  on  suoli  appeal  may  be  prepared  in  the  same  manner 
us  statements  after  a  motion  is  heard  upon  the  minutes  of 
the  court,  as  provided  in  section  601.  En.  Stats.  1873-4, 
819. 

Cal.  Eep.  Cit.  64,  594;  74,  .'59;  91,  212;  103,  505;  118,  383; 
123,  521;  128,  M3;  128,  344;  134,  491;  136,  484;  143, 
26;    143,   27;    143,   30. 

§  663.  Vacation  of  judgment.  A  judgment  or  decree  of 
a  superior  court,  when  based  upon  findings  of  fact  made 
by  the  court,  or  the  special  verdict  of  a  jury,  may,  upon 
motion  of  the  party  aggrieved,  be  set  aside  and  vacated 
by  the  same  court,  and  another  and  different  judgment 
entered,  for  either  of  the  following  causes,  materially 
affecting  the  substantial  rights  of  such  party  and  entitling 
him  to  a  different  judgment: 

1.  Incorrect  or  erroneous  conclusions  of  law  not  con- 
sistent with  or  not  supported  by  the  findings  of  fact;  and 
in  such  case  when  the  judgment  is  set  aside  the  con- 
clusions  of   law   shall   be   amended   and   corrected. 

2.  A  judgment  or  decree  not  consistent  with  or  not 
supported  by  the  special  verdict.  En.  Stats.  1873-4,  319. 
Am'd.  1877-8,  100.     Rep.  1880,  64.     En.  1897,  58. 

Cal.  Rep.  Cit.  105,  111;  121,  579;  125,  241;  126,  108;  131, 
325;  140, 1G9;  141,  1G5;  141,  160;  141,  67;  142,  468;  146, 
456;   146,  51. 

§  6631/2.  Notice  of  motion.  The  party  intending  to 
make  the  motion  mentioned  in  the  last  section  must, 
within  ten  days  after  notice  of  the  rendition  of  judgment 
or  decree,  serve  upon  the  adverse  party  and  file  with  the 
clerk  of  the  court  a  notice  of  his  intention,  designating 
the  grounds  upon  which  the  motion  will  be  made,  and 
specifying  the  particulars  in  which  the  conclusions  of  law 
are  not  consistent  with  the  finding  of  facts,  or  in  which 
the  judgment  or  decree  is  not  consistent  with  the  special 
verdict.  The  said  party  must,  within  sixty  days  after  giv- 
ing such  notice  of  intention,  make  the  motion  to  the  court, 
after  giving  due  notice  of  the  time  of  making  such  mo- 
tion to  the  adverse  party;  but  the  hearing  or  consideration 
of  such  motion  may  be  further  continued  by  the  court. 
En.  Stats.   1897,  59. 

Cal.  Rep.  Cit.  125,  241;  131,  325;  140,  169;  141,  165;  141, 
166. 


2«  GIVING  AND   ENTERING   JUDGMENT.  jj  6M,  66S 

CHAPTER  VIII. 

THE  MANNER  OF  GIVING  AND  ENTERING  JUDGMENT. 

I  ??'*•    Judgment   to   be   entered    In   twenty-four  hours,    etc. 

I  665.     Case    may    be    brought    before    the    court    for   argument 

I  :^-    When    counterclaim    established    exceeds    plaintiff's    demand 

5  €67.  In  replevin,  Juvlgment  to  be  in  the  alternative,  and  with  dam- 
ages.    Gold   coin   or  currency   Judgment. 

8  668.     Judgment  book   to  be  kept   by   the  clerk. 

5  669.  If  a  party  die  after  verdict.  Judgment  may  be  entered,  but  not 
to  be  a  lien. 

§  670.     Judgment-roll,    what   to  constitute. 

8  671.    Judgment   lien,    when    It   begins   and   when    It   expires. 

8  672.     Docket,    how    kept,    and    what    to   contain. 

8  673.    Docket    to    be    open    for    Inspection    without    charge. 

8  674.  Transcript  to  be  filed  In  any  county,  and  Judgment  to  becoma 
a  lien  there. 

fi  675.    Satisfaction   of   a   Judgment,    how   mode. 

8  675a.  Batisfactlon    of   mortgage    recordation;    form. 

8  676.    Defendant   In   suit  to  set  aside   fraudulent   conveyance   may   glva 

bond. 

9  677.    Bond,    condition    in   and   amount   of. 
8  677%.  Bond,    filing  of. 

I  678.    Objections   to   sureties. 

I  5!^^'  J"stincation    of    sureties.    Approval    and    disapproval    of   bonvj. 

8  679.    Objection    because    estimated    value    In    bond    less    than    market 

value. 
8  679%.  Sureties,    how   Justify. 
6  6S0.     Bond,    when   becomes   effective. 
(  680%.  Judgment  may  bo   rendered  on  bond   when. 

§  664.  Judgment  to  be  entered  In  twenty-four  hours,  eto. 
When  trial  by  Jury  has  been  had.  Judgment  must  be  en- 
tered by  the  clerk,  In  conformity  to  the  verdict,  within 
twenty-four  hours  after  the  rendition  of  the  verdict,  unless 
the  court  order  the  case  to  be  reserved  for  argument  or 
further  consideration,  or  grant  a  stay  of  proceedings.  En. 
March  11,  1872. 

Cal.   Rep.  Clt.     50,  524;   75,  565;    76,  534;   79,  73;   97,  425; 
97,  426;  126,  324;  185,  611;  135,  612. 

Prac.  Act,  sec.  197.     En.  April  29,  1851. 

Cal.  Rep.  Clt.     28,  70;  28,  418;   28,  420. 

Reserving,  for  argument  or  further  consideration:   Post, 
sec.  665. 
Stay  of  proceedings  by  appeal:  Post,  sec.  949. 
Arrest  of  defendant:   Sec.  684. 

§  665.  Case  may  be  brought  before  the  court  for  argu- 
ment. When  the  case  is  reserved  for  argument  or  further 
consideration,  as  mentioned  in  the  last  section.  It  may  be 


SS  6M,  M7  an'INO   ANT)   EXTERIN'G   JUDOMRNT.  2M 

brought   by   elthor    party   before   the   court   for   argument 
En.  March  11.  1872. 

Prac.  Act,  sec.   198.     En.   April  29,  1851.     Am'd.  1854,  C2. 

Cal.  Rep.  Clt.     28,  420. 

S  666.  When  counterclaim  established  exceeds  plain- 
tiff's demand.  If  a  CDunterclriim,  established  at  the  trial, 
exceed  the  plaintiff's  demand,  judgment  for  the  defendant 
must  be  given  for  the  exce.s.s;  or  If  It  appear  that  the 
defendant  Is  entitled  to  any  other  aflirniative  relief.  Judg- 
ment must  be  given  accordingly.     En.  March  11,  1872. 

Prao.  Act,  sec.  199.     En.  April  29,  1851. 

Cal.  Rep.  Clt.     19,  658;    27.  320;   32,  629;   41,  69. 

Counterclaim,  generally:  Ante,  sees.  438,  439;  dismissal 
or  non.suit.  where  none:  Ante.  .sec.  581,  subd.  1;  exceeding 
plaintiff's  demand:  Ante,  sec.  626. 

§  667.  In  replevin,  Judgment  to  be  In  the  alternative, 
and  with  damages.  Gold  coin  or  currency  judgment.  la 
an  action  to  recover  the  possession  of  personal  property. 
Judgment  for  the  plaintiff  may  be  for  the  possession  or  the 
value  thereof  in  case  a  delivery  cannot  be  had,  and  dam- 
ages for  the  detention.  If  the  property  has  been  delivered 
to  the  plaintiff,  and  the  defendant  claim  a  return  thereof. 
Judgment  for  the  defendant  may  be  for  a  return  of  the 
property  or  the  value  thereof.  In  case  a  return  cannot  be 
had,  and  damages  for  taking  and  withholding  the  same. 
In  an  action  on  a  contract  or  obligation  in  writing,  for 
the  direct  pajTnent  of  money,  made  payable  In  a  specified 
kind  of  money  or  currency,  judgment  for  the  plaintiff, 
whether  it  be  by  default  or  after  verdict,  may  follow  the 
contract  or  obligation,  and  be  made  payable  in  the  kind  of 
money  or  currency  specified  therein;  and  in  all  actions 
for  the  recovery  of  money.  If  the  plaintiff  allege  in  his 
complaint  that  the  same  was  understood  and  agreed  by  the 
respective  parties  to  be  payable  In  a  specified  kind  of 
money  or  currency,  and  this  fact  is  admitted  by  the  de- 
fault of  the  defendant  or  established  by  evidence,  the  judg- 
ment for  the  plaintiff  must  be  made  payable  in  the  kind  of 
money  or  currency  so  alleged  in  the  complaint;  and  in  an 
action  against  any  person  for  the  recovery  of  money  re- 
ceived by  such  person  in  a  fiduciary  capacity,  or  to  the 
use  of  another,  judgment  for  the  plaintiff  must  be  made 
payable  in  the  kind  of  money  or  currency  so  received  by 
such  person.     En.  March  11,  1872. 


«7  GIVING   AND    ENTERING   JUDGMENT.  gg  668-670 

Cal.  Rep.  CIt.  54,  193;  54,  195;  56,  459;  61,  97;  63.  552- 
65.  238;  66.  487;  67.  606;  C8.  6;  71.  504-  78  577- 
78.  578;  83.  548;  86,  483;  87,  346;  87.  347;  89  463- 
89.  504;  90.  560;  91,  292;  92,  225;  101.  239-  104  689- 
114.  454;  119,  322;  130.  193;  130.  236;  132,  319;  133  85: 
142,  309. 

Prac.  Act,  sec.  200.  En.  April  29,  1851.  Am'd.  1863,  687: 
1869-70,  295. 

Cal.  Rep.  CIt.  7,  571;  11,  277;  24,  149;  26,  484;  41,  518: 
45.  77;   46.  289;  49.  314;  142,  311. 

Money,  how  computed  and  stated:  See  Pol.  Code.  sec. 
3274. 

Replevin — Judgment,  verdict;  Ante.  sec.  627;  value,  cor- 
recting affidavit  of:    Ante.  sec.  473.' 

Execution:    Post,  sec.  682,  subd.   5. 

Replevin,  return  to  defendant:   See  ante,  sees.  514,  G27. 

Specific  money  or  currency,  fiduciary  capacity:  Post.  sec. 
1407. 

§  668.  Judgment  book  to  be  kept  by  the  clerk.  The 
clerk  must  keep,  with  the  records  of  the  court,  a  book  to 
be  called  the  "judgment  book,"  In  which  judgments  must 
be  entered.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  72,  193;  76,  373;  84,  488;  99,  515;  102,  623- 
104,  552;  110.  227;  126,  649;  126,  685;  134,  377;  140,  33. 

Prac.  Act,  sec.  201.     En.  April  29,  1851. 

Register  of  actions:  Pest,  sec.  1052. 

§  669.  If  a  party  die  after  verdict,  Judgment  may  be 
entered,  but  not  to  be  a  lien.  If  a  party  die  after  a  verdict 
or  decision  upon  any  issue  of  fact,  and  before  judgment, 
the  court  may  nevertheless  render  judgment  thereon.  Such 
judgment  is  not  a  Hen  on  the  real  property  of  the  de- 
ceased party,  but  is  payable  in  the  course  of  administration 
on  his  estate.     En.  March  11,  1872. 

Cal.   Rep.  CIt.     108,  482;    108,  483;    124,  230. 

Prac.  Act,  sec.  202.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     29,  367;  108,  483. 

Payable  in  course  of  administration:  Post,  sec.  1506,  and 
see    sec.  1504. 
Death,  suggestion  of:   Ante,  sec.  385. 
Executor,    etc..   Judgment    against,     form   of:  Post,   sec. 

1504. 

§  670.  Judgment-roil,  what  to  constitute.  Immediately 
after  entering  the  judgment,  the  clerk  must  attach  together 


I  670  GIVING    A^ro    ENTERING   JUDGMENT,  MS 

and  file  the  following  papers,  which  constitute  the  Judg- 
ment-roll: 

1.  In  case  the  complaint  be  not  answered  by  ajiy  defend- 
ant, the  summons,  with  the  alliiiavit  or  proof  of  service; 
the  complaint  with  a  mc-morandum  indorsed  thereon  tliat 
the  drfault  of  the  defendant  in  not  answering  was  entered, 
and  a  copy  of  the  judgment;  and  in  case  where  the  service 
BO  made  be  by  publication,  the  affidavit  for  publication 
of  summons,  and  the  order  directing  the  publication  of 
summons,  must  also  be  included. 

2.  In  all  other  cases  the  pleadings,  a  copy  of  the  verdict 
of  tile  jury,  or  finding  of  the  court,  or  referee,  all  bills 
of  exceptions  taken  and  filed,  atd  a  copy  of  any  ordi  r 
made  on  demurrer  or*  relating  to  the  change  of  parties 
and  a  copy  of  tiie  judgment;  if  there  arc  two  or  mon 
defendants  in  the  action,  and  any  one  of  them  has  allowel 
judgment  to  pass  against  him  by  default,  the  summons 
with  proof  of  its  service  on  such  defendant,  must  also  bo 
added  to  the  other  papers  mentioned  in  this  subdivision; 
and  if  the  service  or.  such  defaulting  defcmlant  be  by 
publication,  then  the  affidavit  for  publication,  and  the  ordf 
directing  the  publication  of  the  summons  in  such  casc:\ 
must  also  be  included.  En.  March  11,  1872.  Am'd.  1873-1, 
319;    1875-6,   93;    1895,  45. 

Cal.  Rep.  Cit.  47,  641;  47,  642;  53,  283;  55,  44;  56,  491; 
57,  240;  61,  163;  64,  542;  64,  592;  65,  118;  72,  8S; 
75,  378;  H,  230;  78,  385;  79,  267;  79,  503;  79,  602; 
85,  579;  86,  400;  87,  154;  87,  26G;  89,  486;  93,  606; 
95,  455;  95,  638;  97,  92;  97,  182;  98,  109;  98,  283; 
99,  281;  99,  515;  100,  613;  102,  623;  103,  20;  104,  246; 
104,  550;  104,  552;  105,  111;  110,  560;  115,  270;  115,  69] ; 
120,  38;  121,  12;  123,  79;  126,  347;  133  255;  134,  429; 
139,  697;  140,  357;  140,  675;  146,  213.  Subd.  1—68, 
425;  73,  601;  119,  109;  137,  428;  143,  677;  144,  416; 
145,  605.  Subd.  2—54,  546;  90,  60;  124,  224;  125, 
227;    130,  406. 

Prac.  Act,  sec.  203.     En.  April   29,  1851.     Am'd.  1S62,  110; 
1865-6,   846. 

Cal.  R'^p.  Cit.  27,  109;  28,  174;  28,  305;  28,  418;  32,  174; 
33,  512;  33  563;  34,  403;  34,  425;  34  614;  36,  114; 
41,   137;    49,   308;    74,   501. 


2«  GIVING   AND    ENTERING   JUDGMENT,  §§671,  67? 

Judgment-roll  in  criminal  ca«:es:  See  Pen.  Code,  sec. 
1207. 

Clerk's  powers  and  duties,  county  clerk:  See  Pol.  Code, 
sees.  4204,  4205. 

§  671.  Judgment  lien,  when  It  begiri'S  ani  whe-r  it  ex- 
pires. Immediately  after  filing  the  judgment-roll,  the  clerk 
must  make  the  proper  entries  of  the  judgment,  under  ai*- 
propriate  heads,  in  the  docket  kept  by  him;  and  from  th4 
time  the  judgment  is  docketed  it  becomea  a  lieu  upon  all 
the  real  property  of  the  juasrment  debtor  not  exempt  froirii 
execution  in  the  county,  otvr.ed  by  him  at  the  time,  or 
which  he  may  afterwards  acquire,  until  the  lien  ceases. 
The  lien  continues  for  five  rears,  unless  the  enforcement 
of  the  judgment  be  staj^ed  on  appeal  ty  the  executioa  of 
a  sufficient  undertaking  as  provified  in  this  code,  in  which 
case  the  lien  of  the  judgment  and  any  lien  by  virtue  of  an 
attachment  that  has  been  issued  and  levied  in  the  action 
ceases.     En.  March  11,  1872.    Ain'd.  1873-4,  320;   1895,  36. 

Gal.  Rep.  Cit.  55,  533;  61.  147;  61,  286;  61.  287;  70,  156 
95,  389;  97,  204;  97,  206;  102,  623;  105,  111;  111,  499 
112,  93;  114,  547;  119.  22;  119,  94;  124,  230;  127,  11 
132,  12g;   137,  356;   138,  303;    142,  538;    142,  539. 

Prac.  Act,  sec  204.     En.  April  29,  1851. 

Cal.  Rep.  Cit  6.  134;  14,  57;  25,  346;  25,  347;  25,  350; 
25,  351;  25.  352;  25,  357;  25,  359;  28,  52,5;  31.  397;  37, 
146;    39,    144;    46.    656;    49,    194. 

Judgment  docket:   See  post,   sees.   672-674, 

Recording  transcript  of  docket  in  another  county:  Post, 
sec.  674. 

Judgment  after  decedent's  death,  on  verdict,  etc.,  before: 
Post,   sec.   1506. 

Undertaking  on  apjJeal:   Post,   sees.   941  et  seq. 

§  672.  Docket,  how  kept,  and  what  to  contain.  The 
docket  mentioned  in  the  last  section  is  a  book  which  the 
clerk  keeps  in  his  office,  with  each  page  divided  into  eight 
columns,  and  headed  as  follows:  Judgment  debtors;  lud,'^- 
ment  creditors;  judgment — time  of  entry;  where  enteied 
in  judgment  book;  appeals — when  taken;  judgment  of 
appellate  court;  satisfaction  of  judgment;  when  enteired. 
If  judgment  be  for  the  recovery  of  money  or  damages, 
the  amount  must  be  stated  in  the  docket  under  the  head 
of  judgment;    if  the  judgment  be  for  any  other  relief,  a 


§§  (rn-675  GIVING    /ND    ENTliUlNG    JUDGMENT.  KO 

monioranduni  of  the  general  character  of  the  relief  granted 
must  bo  stated.  The  nainos  of  the  defendants  must  be 
entered   in    alphabetical   order.     En.    March    11,    1872. 

Cal.  Rep.  Cit.  61,  286;   90,  399;   102,  623;    124,  676. 

Prac.  Act,  sec.  205.     En.  April  29,  1851. 

Cal.  Rep.   Cit.  50,  517. 

Docketing  judgment:   Ante,  Bee.  671. 

Duty  of  clerk  to  keep  docket:  Pol.  Code,  sec.  4204. 

§  673.  Docket  to  be  OTsened  for  Inspection  without 
charge.  The  docket  kept  by  the  clerk  is  open  at  all  timrs, 
during  the  office  hours,  for  the  inspection  of  the  public, 
without  charge.  The  clerk  must  arrange  for  several  dock- 
ets kept  by  him  in  such  a  mannner  as  to  facilitate  their  in- 
spection.    En.  March  11,  1872. 

Prac.  Act,  sec.  206.     En.  April  29.  1851. 
Public    writings,     open   to    Inspection:  Post,    sees.   1892, 
1893. 

§  674.  Transcript  to  be  filed  In  any  county,  and  judg- 
ment to  become  a  lien  there.  A  transcript  of  the  original 
docket,  certified  by  the  clerk,  may  be  filed  with  the  re- 
corder of  any  other  county,  and  from  the  time  of  the  filing 
the  judgment  becomes  a  lien  upon  all  the  real  property 
of  the  judgment  debtor,  not  exempt  from  execution,  in 
such  county,  owned  by  him  at  the  time,  or  which  he  may 
afterwards,  and  before  the  lien  expires,  acquire.  The 
lien  continues  for  two  years,  unless  the  judgment  be  pre- 
viously satisfied.    En.   March   11,  1872. 

Cal.  Rep.  Cit.  100,  591;  138,  302;   138,  303. 

Prac.  Act,  sec.  207.     En.  April  29,  1851. 

Judgment  may  be  recorded  without  acknowledgment: 
Civ.  Code,  sec.  1159. 

Recording  judgment  in  county  where  land  situated: 
Sec.  400,  ante;   but  see  sec.  78. 

Recording  generally:  Civ.  Code,  sees.  1158  et  seq. 

Justice's  court  judgment,  abstract  creates  lien:  Post, 
sec.  900. 

§  675.  Satisfactior  of  a  judgment,  how  made.  Satisfac- 
tion of  a  judgment  may  be  entered  in  the  clerk 's  docket 
upon  an   execution  returned  satisfied,  or  upon  an  acknowl- 


251  GIVING   AND    ENTERING    JUDGMENT.  §§  675a.  676 

edgment  of  satisfaction  filed  with  the  clerk  made  in  the 
manner  of  an  acknowledgment  of  a  conveyance  of  real 
property,  by  the  judgment  creditor,  or  by  his  indorsement 
on  the  face,  or  on  the  margin  of  the  record  of  the  judg- 
ment, or  by  the  attorney,  unless  a  revocation  of  his  au- 
thority is  filed.  Whenever  a  judgment  is  satisfied  in  fact, 
otherwise  than  upon  an  execution,  the  party  or  attorney 
must  give  such  acknowledgment,  or  make  such  indorse- 
ment, and  upon  motion  the  court  may  compel  it,  or  may 
order  the  entry  of  satisfaction  to  be  made  without  it. 
En.  March  11,  1872.     Am'd.  1873-4,  320. 

Cal.  Rep.  at.     60,  621;   71,  448;   108,  286;  ISO,  277. 

Prac.  Act,  sec.  208.     En.  April  29,  185L 

Cal.    Rep.    Cit     28,   418. 

.Acknowledgments — Justices  of  the  supreme  court,  Judge3 
of  superior  courts,  and  justices  of  the  peace,  and  police 
judges,  within  certain  limits,  have  power  to  take  and 
certify  acknowledgments  of  satisfaction  of  Judgments: 
Ante,  sec.  179. 

Attorney,  power  to  bind  client:  Ante,  sees.  283-285. 

§  675a.  Satisfaction  of  mortgage  recorded.  Whenever 
a  mortgage  on  real  property  is  foreclosed  in  this  state  and 
the  property  covered  by  such  mortgage  is  sold  under  and 
pursuant  to  the  decree  of  foreclosure  entered  in  the  action 
in  which  such  foreclosure  is  had,  it  shall  be  the  duty  of 
the  sheriff,  or  commissioner  making  the  sale,  as  the  case 
may  be,  within  five  days  after  the  purchaser  at  the  sale 
becomes  entitled  to  a  deed  from  such  sheriff,  or  commis- 
sioner thereunder,  to  enter  upon  the  margin  of  the  county 
records  where  such  mortgage  is  recorded,  if  the  same  be 
recorded,   a  satisfaction   of   the   same. 

Such  satisfaction  shall  be  substantially  in  the  following 
form: 

Full  satisfaction  and  discharge  of  the  within  mortgage 

by  foreclosure   is  hereby   entered   this day   of    

19..     Decree    of    foreclosure    entered    the    day    of 

19..   In  cause  No entitled,   vs 

Sale  under  such  decree  had  the  ....  day  of 19.... 


En.  Stats.  1905,  243.  Sheriff   (commissioner). 

§  676.  Defendant  In  suit  to  set  aside  fraudulent  con- 
veyance may  give  bond.  "^Tiere  an  action  is  commenced 
to  set  aside  a  transfer  or  conveyance  of  property  on  the 
grounds  that  such  transfer  or  conveyance  was  made  to 


5§  C77.  677V4  GIVING    AND    liNTKUlNG    JUDGMENT.  ZSl 

hinder,  delay  or  defraud  a  creditor  or  creditors,  the 
transferee  or  grantee  to  whom  it  is  alleged  the  property 
was  transferred  or  conveyed  to  hinder,  delay  or  defraud 
creditors  or  the  successors  or  assigns  of  such  ti-ansfereo 
or  grantee,  may  give  an  undertaking  as  herein  provided, 
and  when  such  undertaking  is  given  as  herein  provided, 
the  transferee  or  grantee  to  whom  it  is  alleged  the  prop- 
erty was  transferred  or  conveyed  to  hinder,  delay  or 
defraud  creditore,  or  the  successors  and  assigns  of  such 
transferee  or  grantee,  may  sell,  encumber,  transfer,  con- 
vey, mortgage,  ple<lge  or  otherwise  dispose  of  the  property, 
or  any  part  thereof,  which  is  alleged  to  have  been  ti-ans- 
ferred  or  conveyed  to  hinder,  delay  or  defraud  creditors,  co 
that  the  purchaser,  encumbrancer,  transferee,  mortgagee, 
grantee  or  pledgee  of  such  property,  will  take,  own,  hold 
and  possess  such  property  unaffected  by  such  action  and 
Bult,  or  the  judgment  which  may  bo  rendered  therein. 
En.   Stats.   1903.  98. 

S  677.  Bond,  condition  in  and  amount  of.  Such  under- 
taking with  two  sureties  shall  be  executed  by  the  trans- 
feree or  grantee  to  whom  it  Is  alleged  the  property  was 
transferred  or  conveyed  to  hinder,  delay  or  defraud 
creditors,  or  the  suc^-essor  or  assign  of  such  transferee  or 
grantee,  in  douhle  the  estiimated  value  of  the  property  so 
alleged  to  have  been  transferred  or  conveyed;  provided.  In 
no  case  need  such  undertaking  be  for  a  greater  sum  than 
double  the  amount  of  the  debt  or  liability  alleged  to  be  due 
and  crwing  to  the  plaintiff  in  such  action,  commenced  to 
set  aside  said  transfer  and  conveyance;  and  where  such 
estimated  value  of  the  property  alleged  bo  to  have  been 
conveyed  Is  less  than  the  sum  alleged  to  be  due  and  owing 
to  the  plaintiff  in  the  action,  such  estimated  valne  shall  be 
stated  in  the  undertaking,  and  said  undertaking  shall  be 
conditioned  that,  if  it  be  adjudged  in  said  action  that 
the  transfer  or  convejance  was  made  to  hinder,  delay  or 
defraud  a  creditor  or  creditors,  then  that  the  transferee  or 
grantee  or  the  said  successor  or  assigns  of  such  transferee 
or  grantee  giving  such  undertaking,  will  pay  to  the  plain- 
tiff in  said  action  a  sum  equal  to  the  value,  as  the  same 
Is  estimated  in  said  undertaking,  of  said  property  alleged 
to  have  been  transferred  or  conveyed  to  hinder,  delay  or 
defraud  creditors,  not  exceeding  the  sum  alleged  to  be 
due  and  owing  to  the  plaintiff  in  the  action.  En.  Statfl. 
1903,  99. 

§  677J/^.  Bond,  filing  of.  Said  undertaking  shall  be  filed 
in   the  action  in  which  said  execution  issued  and  a  copy 


S3  GIVING   AND   ENTERING   JUDGMENT.  {§  678^,  679 

thereof  served  upon  the  plaintiff  or  his  attorney  in  said 
action.    En.  Stat£.  1903,  99. 

§  678,  Objections  to  sureties.  Within  ten  days  after 
Bervice  of  the  copy  of  undertaking  the  plainti'ff  may  object 
to  such  undertaking  on  the  ground  of  inability  of  the 
sureties,  or  either  of  them,  to  pay  the  sum  for  which  they 
become  bound  in  said  undertaking,  and  upon  the  ground 
that  the  estimated  value  of  the  property  therein  is  less 
than  the  market  value  of  such  property.  Such  objection 
to  the  undertaking  shall  be  made  in  writing,  specifying  the 
ground  or  grounds  of  objection,  and  if  the  objection  is 
made  to  the  undertaking  that  the  estimated  value  therein 
is  less  than  the  market  value  of  the  property,  such  objec- 
tion shall  specify  the  plaintiff's  estimate  of  the  market 
value  of  the  property.  Such  written  objection  shall  be 
Ber^'ed  upon  the  said  transferee  or  grantee,  or  the  suc- 
cessor or  assigns  of  such  transferee  or  grantee  giving 
Buch  undertaking.     En.  Stats.  1903.  99. 

§  678^.  Justification  of  sureties.  Approval  and  disap- 
proval of  bond.  ^\'Tlen  the  sureties  or  either  of  them,  are 
objected  to,  the  surety  or  sureties  so  objected  to  shall 
Justify  before  the  court  in  which  the  action  is  commenced, 
upon  ten  days'  notice  of  the  time  when  they  will  so  jus- 
tify being  given  to  the  plaintiff,  or  plaintiff's  attorney. 
Ux>on  the  hearing  and  examination  into  the  sufficiency  of 
a  surety,  witness  may  be  required  to  attend  and  evidence 
may  be  procured  and  Introduced  in  the  sqjne  manner  as  in 
trial  of  civil  cases.  Upon  such  hearing  and  examination 
the  court  shall  make  its  order,  in  writing,  approving  or 
disapproving  the  sufficiency  of  the  sureties  or  surety  on 
Buch  undertaking.  In  case  the  court  disapproves  of  the 
surety  or  sureties  or  any  undertaking,  a  new  undertaking 
may  be  filed  and  served,  and  to  any  undertaking  given 
under  the  provisions  of  this  act  the  same  objection  to  the 
sureties  may  be  made  and  the  same  proceedings  had  as  in 
case  of  the  first  undertaking  filed  and  served.  En.  Stats. 
1903,  99. 

§  679.  Objection  because  estimated  value  In  bond  less 
than  market  value.  When  objection  is  made  to  the  under- 
taking upon  the  ground  that  the  estimated  value  of  the 
property,  as  stated  in  the  undertaking,  is  less  than  the 
market  value  of  the  property,  the  transferee  or  ^antee,  or 
the  successor  or  assigns  of  such  transferee  or  grantee 
giving  the  undertaking  may  accept  the  estimated  value 
stated  by  the  plaintiff  in  said  objection,  and  a  new  under- 
taking may  at  once  be  filed,  with  the  plaintiff's  estimate 


J5  679V4-«80H       GIVING   AND   ENTKUING   JUDGMENT.  »• 

Stated  therein  as  the  estimated  value,  and  no  objection 
shall  thereafter  be  made  upon  that  ■groumi;  if  the  plain- 
tiff's estimate  of  the  market  value  is  not  accepted,  the 
transferee  or  ^antee,  or  the  successor  or  assigns  of  the 
grantee  or  transferee  giving  such  undertaking,  upon  ten 
days'  notice  to  the  plaintiff,  shall  move  the  court  in  which 
the  action  is  pending  to  estimate  the  market  value  of  the 
property,  and  upon  the  hearing  of  such  motion,  witnesses 
may  be  required  to  attend  and  testify,  and  evidence  may 
be  produced  in  the  same  manner  as  in  the  trial  of  civil  ac- 
tions. Upon  the  hearing  of  the  motion  the  court  snail 
estimate  the  market  value  of  the  property,  and  if  the  esti- 
mated value  of  the  property  as  made  by  the  court  exceeds 
the  estimated  value  as  stated  In  the  undertaking,  a  new 
undertaking  shaJl  be  filed  and  served  with  the  market 
value  determined  by  the  stated  value  therein  as  the  esti- 
mated value  of  the  property.    En.  Stats.  1903,  100. 

S  67914.  Sureties,  how  Justify.  The  sureties  shall  lus- 
tify  upon  the  undertaking  as  required  by  section  one 
thousand  and  fifty-seven  of  the  Code  of  Civil  Procedure, 
En.  Stats.  190a,  100. 

5  680.  Bond,  when  becomes  effective.  The  undertaking 
shall  become  effective  for  the  purpose  stated  in  section  1 
of  this  act,  ten  days  after  service  of  copy  thereof  on  the 
plaintiff,  unless  objection  to  such  undertaking  is  made  S9 
in  this  act  provided,  and  in  case  objection  is  so  nade  to 
the  undertaking  filed  and  served,  the  same  shall  become 
effective  for  such  purpose  when  an  order  is  ma<}e  by  such 
court  approving  the  sureties,  when  the  sure^v  or  sureties 
are  objected  to,  or  affirming  the  estimate  of  the  value  of 
property  when  objection  is  made  thereto,  or  in  case  any 
objection  to  the  undertaking  is  sustained  by  the  court 
when  a  new  undertaking  is  filed  and  served  as  required  by 
this  act,  to  which  no  objection  is  made,  or  if  made  Is  not 
sustained  by  the  court    En.  Stats.  1903,  100. 

§  680'/^.  Judgment  may  be  rendered  on  bond  when.  If 
judgment  be  rendered  in  said  action  that  the  alleged  trans- 
fer or  conveyance  was  made  to  hindeir,  delay  or  defraud 
creditors,  then  judgment  shall  be  rendered  in  sucTi  action 
without  further  proceeding  In  favor  of  plaintiff  and 
against  the  principal  and  sureties  on  said  undertaking  for 
the  sum  for  which  said  undertaking  was  executed  accord- 
ing to  the  conditions  thereof.     En.  Stats.  1903,  101. 


THS    SXSCUTIOM. 


TITLE  IX. 

OF    THE    EXECUTION    OF    THE    JUDGMENT  IN  CIVIL 
ACTIONS. 

Chaptei-  I.     The  Execution,  §§  681-7131^. 

IL    Proceedings     Supplemental     to    the   Execution, 
§§  714-721. 


CHAPTER    L 

THE  EXECUTION. 

{  68t.    Wtthin    what    time   executloa   may    Issue. 

§  C82.    Who   may    issue   the   execution,    Its   form,    to    whom   directed,    and 

what   It   shall    require. 
5  683.    When    made   returnable. 

§  684.     Money   judgments,    and    others,    how   enforced. 
§  685.     Execution   after    Ave    years. 
I  686.    When    execution    may     Issuu    against    the    property     of    a    party 

after  his   death. 
5  CS7.     Execution,    how   and   to   whom   Issued.  , 

§  688.     What    shall     be     liable     to    be    seized     In    execution.     Not     to     be 

affected  till  a  levy  Is  made. 
§  689.     When   property    is   claimed   by   a  third   party.     Indemnity 
§  C90.    WTiat  exempt  from   execution. 
§  691.     Writ,    how  executed. 

§  6J2.     Notice  of  sale  under  execution,    how  given. 
§  693.    Selling    without   notice,    what   penalty    attached. 
5  634.     Sales,    how   conducted.     Neither   the   officer   conducting   It   nor    his 

deputy    to   be   a   purchaser.     Real   and    personal    property,    how 

sold.    Judgment   debtor,    if   present,    nxay   direct   order   of   sale, 

an\l  the  officer  shall  follow  his  directions. 
§  695.     If  purchaser  refuses     to  pay   purchase  money,    what   proceedings. 
§  696.     Officer   may    refuse    such    purchaser's   bid   after. 
§  697.    These   two   sections  not   to   make   officer   liable   beyond   a   certain 

amount. 
5  698.    Personal    property,    not   capable   of   manual    delivery,    how   deliv- 
ered to  purchjtser. 
§  699.    Personal  property  not  capable  of  manual  delivery,  how  sold  and 

delivered. 
§  700.    Real    property,    when    absolute    sale   or   not.    In   the   latter   case, 

what   the   certificate   must  contai«. 
§  701.     Real   property   so   sold,    by   whom    It   may  be   redeemed. 
§  702.    When  It  may  be  redeemed,   and  ndemptlon  money. 
§  703.    When   judgment   debtor   or   other    redemptloner   may   redeem. 
§  704.    In  cases  of  redemption,   to  whom  the  payments  are  to  be  ma'.le. 
§  705.    What  a  redemptioner  must  do  In  order   to   redeem. 
§  706.     Until    the    expiration     of    r'  lomption     time    court     may    restrain 

waste  on   the  property.    What  considered  wa.ste. 
5  707.    Rents  and  profits. 


55  381,  683  THE    EXECUTION.  ■• 

I  708.  If  purchacir  of  ro.-\l  property  be  evicted  for  Irrerularltles  In 
Bale,  What  he  may  recover  and  from  whom.  When  Judgment 
to  be  revived.  Petition  for  the  purpose,  bow  and  by  whom 
ma'de. 

g  709.     Party    who   pays   more    than    his   share   may   compel    contribution. 

g  710.     Ju'.lgments    against    officers,    how    enforced. 

§  710.    Claimant   of   property   may   kIvc   bond   and   release   property. 

§  710V4.  Claim   of  property,    bond,   amount   of  and   conditions   of. 

§  711.     Cl.ilm    of   property,    bond,    filing,    and   serving. 

5  71H4.  Claim   of  property,    bond,    objections   to. 

§  712.     Cioln    of    property,    justification,    approval    and    disapproval. 

§  7121^.  ClPbn   of   property,    bond,    estimate   of   value   and    new   bond. 

§  713.     Claim   of  property,    bond,   justification   of  sureties. 

{  713V4.  Cla-'m   of  property,    bond,    when   becomes   effectual. 

Gmi.  r.it.  to  Chap.— Cal.  Rep.  Cit.     138.  648. 

§   i^^.     Within     what   time     execution    may     issue.     The 
party  in  whose  favor  judgment  is  given,  may,  at  any  time 
within  five  years  after  the  entry  thereof,   have  a  writ  of 
execution  issued  for  its  enforcement.     En.  March  11,  187:i. 
Cal.  Rep.  Cit.     61,  147;   81,  203;   81,  204;   81,  205;   86,  278; 
86,   386;    92,   397;    94,   220;    94,   223;    99,   171;    99,   283; 
107,  132;   111,  362;    114,  547;   137,  311;    138.  193;    138, 
194. 
Prac.  Act,  sec.  209.     En.  April  29,  1851. 
Cal.  Rep.  Cit     3,  215;   12,  468;     20,  55;    22,  650;    28,  70; 
28,   418;    30,   622;    34,   614;    37.   13;    37,   145;    137.   311; 
146,  742. 
Time  for  execution,  when  extended:   Post,  sec.  685, 
Appeal,  stay  of  execution:  Post.  sees.  942-945. 
Where   money   deposited   by    defendant,   judgment   is   to 
be  satisfied  thereon  by  clerli:  Ante,  sec  500. 

Attachment — If  judgment  plaintiff  has  attached  property, 
the  sheriff  must  satisfy  the  judgment  out  of  it:  Ante  sec. 
550. 

Executor  or  administrator — No  execution  must  issue  upon 
judgment  against,  upon  claims  for  money  du«  frc'ja  es- 
tate:  Post.    sec.    1504. 

Receiver,  in  proceedings  in  aid  of  execution:  Ante,  sec. 
564,   subd.   4. 

§  682.  Who  may  issue  the  execution,  Its  fofvn,  tt>  ^^rhetm 
directed,  and  what  it  shall  require.  The  writ  of  execution 
must  be  issued  in  the  name  of  the  people,  sealed  with  the 
seal  of  the  court,  and  subscrioed  by  the  cleri,  and  be 
directed  to  the  sheriff,  and  it  must  intelligibly  refer  to  the 
judgment,  stating  the  court,  the  county  whers  the  juds- 
ment-roll  is  filed,  and  if  it  be  for  money,  the  amouui  there- 
of,  and   the   amount   actually   due   thereon,    and   ii     mao«a 


257  THE    EXECUTION.  §  683 

payable  in  a  specified  Ivind  of  money  or  currency,  as  pro- 
vided in  section  six  hundred  and  sixty-seven,  the  execu- 
tion must  also  state  the  kind  of  money  or  currency  in 
which  the  judgment  is  payable,  and  must  require  the 
sheriff  substantially  as  follows: 

1.  If  it  be  against  the  property  of  the  judgment  debtor, 
it  must  require  the  sheriff  to  satisfy  the  judgment,  with 
interest,  out  of  the  personal  property  of  such  debtor,  and 
if  sufficient  personal  property  cannot  be  found,  then  out 
of  his  real  property;  or  if  the  judgment  be  a  lien  upou 
real  property,  then  out  of  the  real  property  belonging  to 
him  on  the  day  when  the  judgment  was  docketed,  or  at 
any  time  thereafter;  or  if  the  execution  be  issuad  to  a 
county  other  than  the  one  in  which  the  judgment  was 
recovered,  on  the  day  when  the  transcript  of  the  docket 
was  filed  in  the  office  of  the  recorder  of  such  county,  stat- 
ing such  day,  or  any  time  thereafter; 

2.  If  it  be  against  real  or  personal  property  in  the  hancTs 
of  the  personal  representatives,  heirs,  devisees,  legatees, 
tenants,  or  trustees,  it  must  require  the  sheriff  to  satisfy 
thv5  judgment,  with  interest,  out  of  such  property; 

3.  If  it  be  against  the  person  of  the  judgment  debtor,  it 
must  require  the  sheriff  to  arrest  such  debtor  and  commit 
him  to  the  jail  of  the  county  until  he  pay  the  judgment 
with  interest,  or  be  discharged  according  to  law; 

4.  If  it  be  issued  on  a  judgment  made  payable  in  a  speci- 
fied kind  of  money  or  currency,  as  provided  in  section  six 
hundred  and  sixty-seven,  it  must  also  require  the  sheriff  to 
satisfy  the  same  in  the  kind  of  money  or  currency  in 
which  the  judgment  is  made  payable,  and  the  sheiiff  must 
refuse  payment  in  any  other  kind  of  money  or  currency; 
and  in  case  of  levy  and  sale  of  the  property  of  the  judg- 
ment debtor,  he  must  refuse  payment  from  any  purchaser 
at  such  sale  in  any  other  kind  of  money  or  currency  than 
that  specified  in  the  execution.  The  sheriff,  collecting 
money  or  currency  in  the  manner  required  by  this  chapter, 
must  pay  to  the  plaintiff  or  party  entitled  to  recover  the 
same,  the  same  kind  of  money  or  currency  received  by 
him,  and  in  case  of  neglect  or  refusal  so  to  do,  he  shall 
be  liable  on  his  official  bond  to  the  judgment  creditor  in 
three  times  the  amount  of  the  money  so  collected; 

5.  If  it  be  for  the  delivery  of  the  possession  of  real  or 
personal  property,   it  must  require  the   sheriff  to   deliver 

Code   CivU  Proc— 17. 


g  688  THE     EXECtTTION.  W 

the  possession  of  the  same,  describing  It,  to  the  party  en- 
titied  thereto,  rind  may,  at  the  same  time,  require  the 
shoriff  to  satisfy  any  costs,  damages,  rents,  or  protlts, 
recovered  by  the  same  judgment,  out  of  the  personal  prop- 
erty of  the  person  against  whom  It  was  rendered,  and  the 
vaiue  of  the  property  for  which  the  judgment  was  rendered 
to  be  specified  therein  if  a  delivery  thereof  cannot  be 
had;  and  If  sufficient  personal  property  cannot  be  tound, 
then  out  of  the  real  property,  as  provided  in  the  first  sub- 
division of  this  section.     En.  March  11,  1872. 

Cal.  P.ep.  Cit.  53,  558;  79,  601;  94,  220;  121,  197;  131,  529: 
137,  203;  140,  194;  145,  552;  145,  554.  Subd.  1—119, 
194;   131,  600.     Subd.  4—130,  599. 

P.-ac.  Act,  sec.  210.     En.  April  29,  1851.     Am'd.  1863,  688. 

Cal.  JSep.  Cit.  7,  571;  11,  277;  24,  149;  C.  166;  K,  lo7i 
37,   132;    39,   144. 

Contempt  in  interfering  with:  Post,  sees.  1209,  1210, 

Juiigmcnt   a   lien:    Ante,  sees.   671,   G74. 

Property  leviable:   Ante,  sec.  542;  post,  sec.  688. 

Levy  without  process  a  misdemeanor:  See  Pen.  Code,  sec. 
146. 

Subd.  4.  Judgment  payable  in  specified  kind  of  money: 
See  ante,  sec.  667. 

§  683.  When  made  returnable.  The  execution  may  be 
made  returnable  at  any  time  not  less  than  ten  nor  more 
than  sixty  days  after  its  receipt  by  the  sheriff,  to  the  clerk 
with  whom  the  judgment-roll  is  filed.  When  the  execution 
is  returned  the  clerk  must  attach  it  to  the  judgment-roll. 
If  any  real  estate  be  levied  upon,  the  clerk  must  record 
the  execution  and  the  return  thereto  at  large,  ar.il  certify 
the  same  under  his  hand  as  true  copies,  in  a  book  to  be 
called  the  "execution  book,"  which  book  must  be  indexed 
with  the  names  of  the  plaintiffs  and  defendants  in  execu- 
tion, alphabetically  arranged,  and  kept  open  at  all  times 
during  ofiice  hours  for  the  inspection  of  the  public  without 
charge.  It  is  evidence  of  the  contents  of  the  originals 
whenever  they  or  any  part  thereof  may  be  destroyed  or 
mutilated.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     94,  220;  94,  223;  146,  742. 

Prac.  Act,  sec.  212.     En.  April  29,  1851.     Am'd.  1866,  703. 

Return,  failure  to  make  without  delay,  liability  of  sheriff: 
See  Pol.  Code,  sec.  4179. 


259  THE    EXECUTION.  gj  684,  S8S 

§  684.  Money  Judgments,  and  others,  how  enforced. 
When  the  judgment  is  for  money  or  the  possession  of  real 
or  personal  property,  the  same  may  be  enforced  by  a  writ 
of  execution;  and  if  the  judgment  direct  that  the  defendant 
be  arrested,  the  execution  may  issue  against  the  person  of 
the  Judgment  debtor,  after  the  return  of  an  execution 
against  his  property  unsatisfied  In  whole  or  part;  when  the 
Judgment  requires  the  sale  of  property,  the  same  may  be 
enforced  by  a  writ  reciting  such  Judgment  or  the  material 
parts  thereof,  and  directing  the  proper  officer  to  execute 
the  judgment,  by  malting  the  sale  and  applying  the  pro- 
ceeds in  conformity  therewith;  when  the  Judgment  re- 
quires the  performance  of  any  other  act  than  as  above 
designated,  a  certified  copy  of  the  judgment  may  be  served 
upon  the  party  against  whom  the  same  Is  rendered,  or 
upon  the  person  or  officer  required  thereby  or  by  law  to 
obey  the  same,  and  obedience  thereto  may  be  enforced  by 
the  court.    En.  March  11,  1872.    Am'd.  1873-4,  321. 

Cal.  Rep.  Cit.  53,  558;  53,  559;  57,  9;  57,  10;  62,  630;  72. 
203;  72,  264;  75,  414;  76,  542;  90,  185;  93,  143;  94, 
220;  94,  223;  101,  204;  119.  197;  121,  197;  121,  342; 
130,  599;    137,  87;    137,  203;    140,  194;    145,  554. 

Prac.  Act,  sec.  213.     En.  April  29.  1851.    Am'd.  1866,  703. 

Cal.   Rep.   Cit.     30,   371. 

Money,  how  computed  and  stated  In:  See  Pol.  Code,  sec 
3274. 

Writ  of  possession  or  restitution:  Ante,  seo.  380;  post, 
sec.   1174. 

Re-entry  after  dispossession:  Post,  sec.  1210. 

Execution  against  the  person,  discharge  of  prisoner: 
Post,  sees.  1143-1154. 

Sale  of  property:   See  post,  sees.  694  et  seq. 

Performance  of  any  other  act — Enforcing  obedience: 
Post,  sees.  1209  et  seq. 

§  f85.  Execution  after  five  years.  In  all  cases,  the 
Judgment  may  be  enforced  or  carried  Into  execution  after 
the  lapse  of  five  years  from  the  date  of  its  entry,  by  leave 
of  the  court,  upon  motion,  or  by  judgment  for  that  purpose, 
founded  upon  supplemental  pleadings;  but  nothing  in  this 
section  shall  be  construed  to  revive  a  judgment  for  the 
recovery  of  money  which  shall  have  been  barred  by  limita- 


5§  6E:,  CS7  THE    EXECUTION.  IN 

tlou  at  the  time  of  the  passage  of  this  act.  En.  March  11, 
1872.     Am'd,  1S95,  38. 

Cal.    Rep.    Clt.    Gl.  147;    81,  203;    81,  204;    86,  278;    86, 
385;    121,  29;    1?1.  30;    137,  38;    145.  531;    145.  532. 

Prac.  Act,  sec.  214.  En.  April  29,  1851.  Am'd.  1861.  116; 
18C6.  704. 

Cal.  Rep.  Clt.     8,  513;    17.  271;    22.  650;    29,  229;    37,  13; 
37,  14;    37.  15;    37,  135;    37,  146. 

§  686,  When  execution  may  Issue  against  the  property 
of  a  party  after  his  death.  Notwithstanding  the  death  of 
a  party  after  the  judgment,  execution  thereon  may  be 
Issued,  or  It  may  be  enforced  as  follows: 

1.  In  case  of  the  death  of  the  Judgment  creditor,  upon 
the  application  of  his  executor,  or  administrator,  or  suc- 
cessor In  Interest; 

2.  In  case  of  the  death  of  th6  Judgment  debtor.  If  the 
judgment  be  for  the  recovery  of  real  a  personal  property, 
or  the  enforcement  of  a  lien  thereon.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     138,  259. 

Prac.  Act,  sec.  215.    En.  April  29,  1851.     Am'd.  1864,  453. 

Cal.  Rep.  Clt.     29,  3G8;    37,  14. 

Death  of  party — Eflect  on  action:  Ante,  sec.  385;  Judg- 
ment after:  Ante,  sec.  669;  execution  aiter:  Post,  seo. 
1505. 

§  687.     Execution,  how  and  to  whom  Issued.     Where  the 

execution  Is  against  the  property  of  the  judgment  debtor, 
it  may  be  Issued  to  the  sheriff  of  any  county  in  the  state. 
Where  it  requires  the  delivery  of  real  or  personal  prop- 
erty. It  must  be  issued  to  the  sheriff  of  the  county  where 
the  property,  or  some  part  thereof,  is  situated.  Execu- 
tions may  be  issued,  al  the  same  time,  to  different  coun- 
ties.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     83.  459. 

Prac.  Act,  sec.  216.    En.  April  29,  1851. 
Any  county  in  the  state,  process  extends  to:  Sec.  78. 
Execution  requiring  delivery  of  real  and  personal  prop- 
erty:  Ante,  sec.  682,  subd.  6. 


2C1  THE    EXECUTION.  5§  688,  689 

Act  concerning  execution  of  final  process  where  new 
county  formed:   See  post,  Appendix,  title  Process. 

§  688.  What  shall  be  liable  to  be  seized  In  execution. 
Not  to  be  affected  till  a  levy  is  made.  All  goods,  chattels, 
moneys,  and  other  property,  both  real  and  personal,  or 
any  interest  therein  of  the  judgment  debtor,  not  exempt 
by  law,  and  all  property  and  rights  of  property  seized  and 
held  under  attachment  in  the  action,  are  liable  to  execu- 
tion. Shares  and  interests  in  any  corporation  or  com- 
pany, and  debts  and  credits,  and  all  other  property,  both 
real  and  personal,  or  any  interest  in  either  real  or  per- 
sonal property,  and  all  other  property  not  capable  of 
manual  delivery,  may  be  attached  on  execution,  in  like 
manner  as  upon  writs  of  attachment.  Gold  dust  must  be 
returned  by  the  officer  as  so  much  money  collected  at  its 
current  value,  without  exposing  the  same  to  sale.  Until 
a  lew,  property  is  not  affected  by  the  execution.  En. 
March  11,  1872. 

Oal.  Rep.  Cit.  52,  331;  54,  342;  57,  522;  58,  375;  65, 
302;  72,  70;  77,  655;  94,  221;  99,  165;  100,  327; 
101,  227;  118,  101;  119,  194;  122,  97;  131,  89;  133, 
317;    138,  194;    146,  742. 

Prac.  Act,  sec  217.  En.  April  29,  1851.  Am'd.  1854,  62; 
1862,  568. 

Cal.  Rep.  Cit.  6,  196;  7,  204;  13,  22;  34,  87;  84,  607; 
37,  146;     39,  144;     54,  459;     119,  196. 

Goodwill:  Civ.  Code,  sees.  992,  993. 

Franchise:   Civ.  Code,  sees.  388-393. 

Homestead:  See  Civ.  Code,  sees.  1241-1261.  Sole  trad- 
ers:  See  post,  sees.  1811-182L 

Levy:   Ante,  sec.  542. 

Estates  at  will  not  subject  to  execution:  See  C3v.  Ck>de, 
sec.  765. 

Exemptions,  generally:   Post,  sec  690. 

§  689.  When  property  Is  claimed  by  a  third  party.  In- 
demnity. If  the  property  levied  on  be  claimed  by  a  third 
person  as  his  property  by  a  written  claim  verified  by  the 
oath  of  said  claimant,  setting  out  his  title  thereto,  his 
right  to  the  possession  thereof,  and  stating  the  grounds  of 
such  title,  and  served  upon  the  sheriff,  the  sheriff  is  not 
bound  to  keep  the  property  unless  the  plaintiff,  or  the 
person  in  whose  favor  the  writ  of  execution  runs,  on  de- 
mand,   indemnify    the    sheriff    against  such  claim   by  an 


5  690  TIIE   EXECUTION.  Ml 

undertaking  by  at  least  two  good  and  sufRnient  su'-eties; 
an'J  no  claim  to  such  property  is  valid  against  the  sheriff, 
or  shall  be  received,  or  be  notice  of  any  rights,  unless 
made  as  above  provided.  En.  March  11,  1872.  Am'd.  1891, 
20. 

Cal.  Rep.  Clt.  58,  438;  97,  48.?;  108.  145;  109,  241;  113, 
3C3;  114,  295;  117,  40;  122,  334;  126,  42;  133,  84; 
138,  444;    142,  459. 

Prac.  Act,  sec.  218.    En.  April  29,  1851. 

If  the  sheriff  give  notice  to  sureties  of  action  brought 
against  him,  they  are  liable  on  the  judgment:  Post,  sec. 
1055. 

§  690.  What  exempt  from  execution.  The  following 
property  is  exempt  from  execution,  except  as  herein  other- 
wise specially  provided: 

1.  Chairs,  tables,  d'csks,  and  books,  to  the  value  of  two 
hundred  dollars,  belon-ging  to  the  judgment  debtor; 

2.  Necessary  household,  table,  and  kitchen  furniture 
belor^ing  to  the  judg-ment  debtor,  including  one  sewing- 
machine,  stove,  stove-pipes  and  furniture,  wearing  apparel, 
beds,  bedding,  and  bedsteads,  hanging  pictures,  oil  paint- 
ings and  drawings  drawn  or  painted  by  any  member  of 
the  family,  and  family  portraits  and  their  necessary 
frames,  provisions  and  fuel  actually  provided  for  individ- 
ual or  family  use,  sufficient  for  three  months,  and  three 
cows  and  their  suckling  calves,  four  hogs  with  their  suck- 
ling pigs,  and  food  for  such  cows  and  hogs  for  one  month; 
also,  one  piano,  one  shotgun,  and  one  rifle; 

3.  The  farming  utensils  or  implements  of  husbandry  of 
the  judgment  deptor,  not  exceeding  in  value  the  sum  of 
one  thousand  dollars;  also,  two  oxen,  or  two  horses,  or 
two  mules,  and  their  harness,  one  cart  or  buggy  and  two 
wagons,  and  food  for  such  oxen,  horses,  or  mules,  for  one 
month;  also,  all  seed,  grain,  or  vegetables  actually  pro- 
vided, reserved,  or  on  hand  for  the  purpose  of  planting  or 
sowing  at  any  time  within  the  ensuing  six  months,  not 
exceeding  in  value  the  sum  of  two  hundred  dollars;  and 
seventy-five  beehives;  one  horse  and  vehicle  belon'glng  to 
any  person  who  is  maimed  or  crippled,  and  the  same  is 
necessary  in  his  business; 

4.  The  tools  or  implements  of  a  mechanic  or  artisan, 
necessary  to  carry  on  his  trade;  the  notarial  seal,  records, 
and  office  furniture  of  a  notary   public;    the  instruments 


268  THE   EXKOtrriOM.  |  6J0 

and  chest  of  a  surgeon,  physiciajQ,  surveyor,  ot  dentist, 
nccessai-y  to  the  exercise  of  tneir  profes-sion,  with  their 
professional  libraries  and  necessary  office  furniture;  the 
professional  libraries  of  attorneys,  judges,  ministers  of 
the  gospel,  editors,  school  teachers,  and  music  teachers, 
and  their  necessary  oifi.ce  farniture;  including  one  safe 
and  one  typewriter;  also  the  musical  instruments  of 
music  teachers  actually  used  by  them  in  giving  instruc- 
tions, and  all  the  indexes,  abstracts,  books,  papers,  maps 
and  office  furniture  of  a  searcher  c>I  records  necessary  to 
be  used  in  his  profession;  also,  the  typewriters,  or  other 
mtschanical  contrivances  employed  for  venting  in  type, 
actually  used  by  the  owner  thereof  for  making  his  living; 
also,  one  bicycle,  when  the  same  is  used  by  its  owner  for 
the  purpose  of  carrying  on  his  regular  business,  or  when 
the  same  is  used  for  the  purpose  of  transporting  the 
owner  to  an-d  from  his  place  of  business; 

5.  The  cabin  or  dwelling  of  a  miner,  not  ej:ceeding  In 
value  the  sum  of  five  hundred  dollars;  also,  his  a'.uices, 
pipes,  hose,  windlass,  derrick,  cars,  pumps,  tools,  Imple- 
ments, and  appliances  necessary  for  carrying  on  any  min- 
ing operations,  not  exceeding  in  value  the  aggregate  sum 
of  five  hundred  dollars;  and  two  horses,  mules,  or  oxen 
with  their  harness,  and  foo-d  for  such  horsea,  mules,  or 
oxen  for  one  month,  when  necessary  to  be  used  on  any 
whim,  windlass,  tlerrick,  car  pump  or  hoisting  gear;  and 
also  his  mining  claim,  actually  worked  by  him,  not  ex- 
ceeding in  value  the  sum  of  one  thousand  dollars; 

6.  Two  horses,  two  oxen,  or  two  mules,  and  their  har- 
ness, and  one  cart  or  wagon,  one  dray  or  truck,  one  coupcv 
one  hack,  or  carriage,  for  one  or  two  horses,  by  the  use  ct 
which  a  cartman,  drayman,  truckman,  huckster,  peddler, 
hackman,  teamster,  or  other  laborer  habitually  earns  his 
living;  and  one  horse,  with  vehicle  anfl  b.arness  or  otheic 
equipments,  used  by  a  physician,  surgeon,  constable,  or 
minister  of  the  gospel,  in  the  legitimate  practice  of  his 
profession  or  business;  with  food  for  such  oxen,  horses,  or 
mules  for  one  month; 

7.  One  fishing-boat  and  net,  not  exceeding  the  total 
Talue  of  five  hundred  dollars,  the  property  of  any  fisher- 
man, by  the  lawful  use  of  which  he  earns  his  livelihood; 

8.  Poultry  not  exceeding  In  value  seventy  five  dollars; 

9.  The  wages  and  earnings  of  all  seamen,  sea-going 
fishermen  and  sealers,  not  exceeding  three  hundred   dol- 


g  e9«  TIIE   EXECUTION.  «« 

lars,  regardless  of  where  or  when  earned,  and  In  additioa 
to  all  oth'^r  exemptions  othcrwLse  provided  by  any  law; 

10.  The  earnings  of  the  Judgment  debtor  for  his  personal 
services  rendered  at  any  time  within  thirty  days  next 
precfAling  the  levy  of  exerution  or  attachjnent,  when  it 
appears,  by  the  debtor's  affidavit,  or  otherwise,  that  such 
earnings  are  ncx^essary  for  the  u.se  of  his  family,  residing 
in  this  dtate,  supported  In  whole  or  In  part  by  his  labor; 
but  where  debts  are  incurred  by  any  such  person,  or  his 
Vfitb  or  family,  for  the  common  necessaries  of  life,  or  have 
been  incurred  at  a  time  wlion  the  debtor  had  no  family, 
residing  in  this  state,  supported  in  whole  or  in  part  by  his 
la./cr,  the  one-half  of  such  earnings  above  mentioned  is 
nevertheless  subject  to  execution,  garnishment,  or  attach- 
natot  to  satisfy  debts  so  incurred; 

11.  The  shares  held  by  a  member  of  a  hoanestead  asso- 
ciation duly  incorporated,  not  exceeding  in  value  one 
thousand  dollars  if  the  person  holding  the  shares  is  not  the 
owner  of  a  homestead  under  the  laws  of  this  state; 

12.  All  the  nautical  Instruments  and  wearing  apparel 
of  any  master,  officer,  or  seaman  of  any  steamer  or  other 
vessel; 

13.  All  fire  engines,  hooks  and  ladders,  with  the  carts, 
trucks  and  carriages,  hose  buckets.  Implements,  and  ap- 
paratus thereunto  appertaining,  and  all  furniture  and  uni- 
forms of  any  fire  company  or  department  organized  under 
the  laws  of  this  state; 

14.  All  arms,  uniforms,  and  accoutrements  required  by 
law  to  be  kept  by  any  person,  and  also  one  gun,  to  be 
selected  by  the  debtor; 

15.  All  court-houses,  jails,  public  offices,  and  buildings, 
lots,  grounds,  and  personal  property,  the  fixtures,  furniture, 
books,  papers  and  appurtenances  belonging  aud  pertaining 
to  the  jail  and  public  offices  belonging  to  any  county  of 
this  state;  and  all  cemeteries,  public  squares,  parks,  and 
places,  public  buildings,  town  halls,  markets,  buildings  for 
the  use  of  fire  departments  and  military  organizations, 
and  the  lots  and  grounds  thereto  belonging  and  apper- 
taining, owned  or  held  by  any  town  or  incorporated  city, 
or  dedicated  by  such  town  or  city  to  health,  ornament,  or 
public  use,  or  for  the  use  of  any  fire  or  military  company 
organized  under  the  laws  of  this  state; 


265  THE    EXECUTION.  i  699 

16.  All  material,  not  exceeding  one  thousand  dollars  In 
value,  purchased  in  good  faith  for  use  in  the  construction, 
alteration,  or  repair  of  any  building,  mining  claim  or  other 
improvement,  as  long  as  in  good  faith  the  same  Is  about 
to  be  applied  to  the  construction,  alteration,  or  repair  of 
such  building,  mining  claim,  or  other  improvement; 

17.  All  machinery,  tools  and  implements,  necessary  In 
and  for  boring,  sinking,  putting  down  and  constructing 
surface  or  artesian  wells;  also  the  engines  necessary  for 
operating  such  machinery,  implements,  tools,  etc.,  also 
all  trucks  necessary  for  the  transportation  of  such 
machinery,  tools,  implements,  engines,  etc.;  provided,  that 
the  value  of  all  the  articles  exempted  under  tils  sub- 
division shall  not  exceed  one  thousand  dollars; 

18.  All  moneys,  benefits,  privileges,  or  Immunities  accru- 
ing or  in  any  manner  growing  out  of  any  life  Insurance,  If 
the  annual  premiums  paid  do  not  exceed  five  hundred  dol- 
lars, and  if  they  exceed  that  sum,  a  like  exemption  shall 
exist  which  shall  bear  the  same  proportion  to  the  moneys, 
benefits,  privileges,  and  immunities  so  accruing  or  grow- 
ing out  of  such  insurance  that  said  five  hundred  dollars 
bears  to  the  whole  annual  premiums  paid; 

19.  Shares  of  stock  in  any  building  and  loan  association 
to  the  value  of  one  thousand  dollars. 

No  article,  however,  or  species  of  property  mentioned  in 
this  section,  is  exempt  from  execution  issued  upon  a  judg- 
ment recovered  for  its  price,  or  upon  a  judgment  of  fore- 
closure of  a  mortgage  or  other  lien  thereon.  En.  March 
11,  1872.  Am'd.  1875-6.  94;  1877-8,  101;  1887,  99;  1897,  180; 
1899,  19;   1900-01,  21;   1903,  114. 

Cal.  Rep.  Cit  62,  400;  62,  406;  64,  291;  72,  244;  77,  195; 
77,  404;  99,  203;  102,  536;  122,  439.  Subd.  2.— 140, 
623.  Subd.  3—65,  507;  67,  400;  71,  77;  119,  42;  121, 
538;  122,  436.  Subd.  4—87,  293.  Subd.  5—98,  479. 
Subd.  6—54,  640;  64,  290;  72,  244;  83,  196;  91,  276. 
Subd.  10—75,  249;  142,  195.  Subd.  11—123,  40L 
Subd.  12—121,  354;  122,  97.  Subd.  13—90,  546.  Subd. 
18—145.  778. 

Prac.  Act,  sec  219.  En.  April  29,  1851.  Am'd.  1854,  62; 
1862,  573;   1864,  523;    1869-70,  384;    1871-2,  864. 

Cal.  Rep.  Cit  34,  305;  38.  383;  71,  78,  Subd.  3—77,  195. 
Subd.  6—77,  195. 


i;  601,  C02  THE    EXECUTION.  WU 

§  691.  Writ,  how  execute  i.  Tho  shoriff  must  pxorute 
tho  writ  against  tho  property  of  the  ju<!,L;inent  dehlor,  by 
levying  on  a  sufficient  amount  of  proporly,  if  there  be 
Bufiicient.  colloeting  or  selling  the  things  in  action,  and 
Belling  the  other  property,  and  paying  to  the  plaintiff  or 
Ills  attorney  so  much  of  the  proceeds  as  will  satisfy  tho 
Judgment.  Any  excess  in  tho  proceeds  over  the  judgment 
and  accruing  costs  must  be  returned  to  the  judgment 
debtor,  unless  otherwise  directed  by  the  judgment  or  order 
of  the  court.  When  there  is  more  property  of  the  Judg- 
ment debtor  than  Is  sufTlclent  to  satisfy  the  Judgment  and 
accruing  costs  within  the  view  of  the  sheriff,  he  must  levy 
only  on  such  part  of  the  property  as  th'^  judgmont  debtor 
may  indicate,  if  the  property  indicated  be  amply  sufficient 
to  satisfy  the  judgment  and  costs.  En.  March  11,  1872. 
Am'd.  1873-4.  321. 

Cal.   Rep.  Cit.     58,  455;    108,  287;   119,  191;   119.  195;   131, 
690. 

Prac.  Act.  sec.  220.     En.  April  29.  1851. 
Cal.    Rep.   Cit     7,   204;    13,   22;    34,  87. 

Justification  of  sheriff:  See  Pol.  Code,  sec.  4187. 

Shoriff  must  execute  writ:   Pol.  Code,  sec.  4180. 

Neglect  of  sheriff  to  levy  or  sell,  liability:  See  Pol.  Code, 
sec.  4180. 

Directions  to  sheriff,  effect  of:    See  Pol.  Code,  sec.  4185. 

Selling  property:   Post,  sees.  692  et  seq. 

Paying  over  proceeds:   Pol.  Code,  sees.  4181,  418G. 

Debts,  payment  of  to  sheriff:  Ante,  sec.  544;  post,  sec 
716. 

§  692.  Notice  of  sale  under  execution,  how  given.  Be- 
fore the  sale  of  property  on  execution,  notice  thereof  must 
be  given  as  follows: 

1.  In  case  of  perishable  property:  by  posting  written 
notice  of  the  time  and  place  of  sale  In  three  public  places 
of  the  township  or  city  where  the  sale  is  to  take  place, 
for  such  time  as  may  be  reasonable,  considering  the  char- 
acter and  condition  of  the  property. 

2.  In    case    of    other   personal    property:    by   posting   a 
similar  notice  in   three  public  places  in  the  township  or 
city  where  the  sale  is  to  take  place,  for  not  less  than  five 
nor  more  than  ten  days. 


2eT  THE    EXECUTION.  §§  69S.  694 

3.  In  case  of  real  property:  by  posting  a  similar  notice, 
particularly  describing  the  property,  for  twenty  days,  in 
three  public  places  of  the  township  or  city  vhere  the  prop- 
erty is  situated,  and  also  where  the  property  is  to  be  sold, 
and  publishing  a  copy  thereof,  once  a  week  for  the  same 
period,  in  some  newspaper  published  in  the  county,  if  there 
be  one. 

4.  When  the  judgment  under  which  the  property  is  to 
be  sold  is  made  payable  in  a  specified  kind  of  money  or 
currency,  the  several  notices  required  by  tiis  section  must 
state  the  kind  of  money  or  currency  in  which  bids  may 
be  made  at  such  sale,  which  must  be  the  same  as  that  speci- 
fied in  tlie  judgment.  En.  March  11,  1872.  Am'd.  18V3-4, 
322. 

Cal.  Rep.  Cit.     63,  518;    100,  215;    100,  216;    100,  219;    101, 
204;   119,  197.     Subd.  3—119,  194. 

Prac.  Act,  sec.  221.      En.  April  29,  1851.     Am'd.  1863,  689. 
Sale  of  vessels,  notice  of:   Post,  sees.  824,  827. 
Sale  without  notice:   Post,  sec.  693. 

Perishable  property,  sale  under  attachment:  Ante,  sec. 
547. 

Specified  kind  of  money:  Ante,  sec.  682,  subd.  4- 

§  693.     Selling  without  notice,    what    penalty    attached. 

An  officer  selling  without  tne  notice  prescribed  by  the 
last  section  forfeits  five  hundred  dollars  to  the  aggrieved 
party,  in  addition  to  his  actual  damages;  and  a  person  will- 
fully taking  down  or  defacing  the  notice  posted,  if  done 
before  the  sale  or  the  satisfaction  of  the  judgment  (if 
the  judgment  be  satisfied  before  sale),  forfeits  five  hundred 
dollars.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     63,  518;    63.  519;    100,  215;    100,  219;    101, 
204;  136,  3. 

Prac.  Act,  sec.  222.     En.  April  29,  185L 

Cal.  Rep.  Cit     3,  289;  22,  264. 

§  694.  Sales,  haw  conducted.  Neither  the  officer  con- 
ducting it  nor  his  deputy  to  be  a  purchaser.  Real  and 
personal  property,  how  sold.  Judgment  debtor,  if  present, 
may  direct  order  of  sale,  and  the  officer  shall  follow  his 
directions.  All  sales  of  property  under  execution  must  be 
made  at  auction  to  the  highest  bidder,  between  the  hours 


{S  695,  69«  TIIE    EXECITTION.  Bt 

of  nine  in  tho  morning  and  five  in  the  afternoon.  After 
sufficient  property  has  been  sold  to  satisfy  the  execution, 
no  more  can  be  sold.  Neither  the  officer  hol-ding  the  exe- 
cution nor  his  deputy  can  become  a  purchaser  or  be  inter- 
ested in  any  purchase  at  such  sale.  When  the  sale  is  of 
personal  property,  capable  of  manual  deiiveiy,  it  must 
be  within  view  of  those  who  attend  the  sale,  and  be  soL-d 
in  such  parcels  as  are  likely  to  bring  the  highest  pnce; 
and  when  the  sale  is  of  real  property,  consisting  of  sev- 
eral known  lots  or  parcels,  they  must  be  sold  separately; 
or  when  a  portion  of  such  real  property  is  claimed  by  a 
third  person,  and  he  requires  it  to  be  sold  separately, 
such  portion  mu.'^t  be  thus  sold.  The  judgment  debtor,  if 
present  at  the  sale,  may  also  direct  the  order  in  which  prop- 
erty, real  or  personal,  shall  be  sold,  when  such  property 
consists  of  several  known  lots  or  parcels,  or  of  articles 
which  can  be  sold  to  advantage  separately,  and  the  sheriff 
must  follow  such  directions.     En.  March  11,  1872. 

Cal.  Rep.  Cit  51,  553;  54,  351;  57.  9;  57,  10;  58,  455; 
65,  18;  86,  328;  90,  185;  91,  39;  113,  562;  127,  165; 
129,  164;    142,  305. 

Prac.   Act,  sec.   223.     En.   April   29,  1851. 

Cal.  Rep.  Cit.     6,  52;     21,  58;     54,  351. 

Auctioneer,  sheriff  as:  Pol.  Code,  sec.  3291. 

§  695.  If  purchaser  refuses  to  pay  purchase  money,  what 
proceedings.  If  a  purchaser  refuse  to  pay  the  amount  bid 
by  him  for  property  struck  off  to  him  at  a  sale  under  exe- 
cution, the  officer  may  again  sell  the  property  at  any  time 
to  the  highest  bidder,  and  if  any  loss  be  occasioned  there- 
by, the  officer  may  recover  the  amount  of  such  loss,  with 
costs,  from  the  bidder  so  refusing,  in  any  court  of  compe- 
tent jurisdiction.     En.  March  11,  1872.     Am'd.  1873-4,  323. 

Cal.  Eep.  Cit.     131,  687;  131,  697;  131,  702. 

Prac.  Act,  sec.  224.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     8,  26;  9,  94;  22,  512. 

§  696.  Officer  may  refuse  such  purchaser's  bid  after. 
When  a  purchaser  refuses  to  pay,  the  officer  may,  in  his 
discretion,  thereafter,  reject  any^  subsequent  bid  of  such  per- 
son.    En.  March  11,  1872.     Am'd.  1873-4,  323. 

Prac.  Act,  see.  225.     En.  April  29,  1851. 


KS  THE   EXECUTION.  SS  J9t-7M 

§  697.  These  two  sections  not  to  make  officer  liable  be- 
yond a  certain  amount.  The  two  preceding  sections  must 
not  be  construed  to  make  the  oflScer  liable  for  any  more 
than  the  amount  bid  by  the  second  or  sebsequent  pur- 
chaser, and  the  amount  collected  from  the  purchaser  re- 
fusing to  pay.    En.  March  11,  1872. 

Prac.  Act,  sec.  22b.    En.  April  29,  1851. 

§  698.  Personal  property,  nnii  capable  ef  manual  ds'Iv- 
ery,  how  delivered  to  purchas'*r.  When  the  purchaser  of 
any  personal  property,  capable  of  manual  delivery,  pj«ys 
the  purchase  money,  the  officer  making  the  sale  must  de- 
liver to  the  purchaser  the  property,  and  if  desired,  exe- 
cute and  deliver  to  him  a  certificate  of  the  sale.  Such 
certificate  conveys  to  the  purchaser  all  the  right  which  the 
debtor  had  in  such  property  on  the  day  the  execution  or 
attachment  was  leYiod.     En.   March  11,  1872. 

Cal.  Rep.  Cit.     123,  315;    131,  11. 

Prac.  Act,  sec.  227.     En.  April  29,  185L 

Cal.  Rep.  Cit.    13,  22. 

Certificate  of  sale:  See  next  section. 

§  699.  Personal  property  not  capable  of  manual  deliv- 
ery, how  sold  and  delivered.  "When  the  purchaser  of  any 
personal  property,  not  capable  of  manual  delivery,  pays  the 
purchase  money,  the  officer  making  the  sale  must  execute 
and  deliver. to  the  purchaser  a  certificate  of  sale.  Such  cer- 
tificate conveys  to  the  purchaser  all  the  right  which  the 
debtor  had  in  such  property  on  the  day  the  execution  or 
attachment  was  levied.     En.  March  11,  1872. 

Prac.  Act,  sec.  228.     En.  April  29,  1851. 

Cal.  Eep.  Cit.     13,  22;  34,  87. 

Attachment,  personalty  not  capable  of  manual  delivery: 
Ante,  sec.  542. 

§  700.  Real  property,  when  absolute  sale  or  not.  In  the 
latter  case,  what  the  certificate  must  contain.  Upon  a  sale 
of  real  property,  the  purchaser  is  substituted  to  and  ac- 
quires all  the  right,  title,  interest,  and  claim  of  the  judg- 
ment debtor  thereto;  and  when  the  estate  is  less  than  a 
leasehold  of   two  years'   unexpired   term,   the   sale  is   abso- 


§  701  "niE    EXECUTION.  «» 

lute.  In  all  other  ca.'ie.^.  the  property  is  subject  to  redemp- 
tiun,  as  piovidcil  in  this  chapter.  The  ofllccr  must  give  to 
the  purclia-ser  a  certificate  of  sale,  containing: 

1.  A  particular  description  of  the  real  property  sold; 

2.  The  price  bitl  for  each  distinct  lot  or  parcel; 

3.  The   whole   price  paid; 

4.  When  subject  to  redemption,  it  raust  be  so  stated. 
And  when  the  jud-gment  under  which  the  sale  has  been 

made,  is  made  payable  in  a  specified  liind  of  money  or 
currcuoy,  the  certilicato  must  also  show  the  kind  of  money 
or  currency,  in  which  .such  redemption  may  be  made,  wliich 
must  be  the  same  a,3  that  specified  in  the  judgment.  A 
duplicate  of  such  certificate  must  be  filed  by  the  ofFicer  in 
the  office  of  the  itcorder  of  the  county.  En.  March  11, 
1872. 

Cal.  Rep.  Clt.  55,  533;  55.  534;  55,  539;  55,  542;  5S, 
375;  75.  55G;  102,  CSO;  IIC.  230;  117.  75;  121,  600; 
122,  513;  124,  IGG;  128,  20;  13S,  391;  138,  392;  142, 
53S;     143,  GC6. 

Prac.  Act,  sec.  229.  En.  April  29,  1851.  Am'd.  18C2,  569; 
18G3,  C89. 

Cal.  Rep.  Cit.  2,  596;  4,  143;  31,  300;  31,  317;  31,  n^; 
138,  392. 

Specified  kind  of  money:    Sees.  682,  subd.  4,  692. 

Certificate,  recording:   Pol.  Code,  sec.  4237. 

Sheriff's  deed,  and  what  pas.ses  by  it:   Post,  sec.  7«)C». 

Injunction  to  restrain  person  in  possession  from  vfejats: 
Post,  sec.  745.  Recovery  of  damages  for  waste:  Post,  T/ia. 
746. 

Writ  of  assistance:   Post,  sec.  1210. 

§  701.  Real  property  so  sold,  by  whom  it  may  be  re- 
deemed. Property  sold  subject  to  redemption,  as  provided 
in  the  last  section,  or  any  part  sold  separately,  may  be 
redeemed  in  the  manner  hereinafter  provided  by  the  fol- 
lowing persons,  or  their  successors  in  interest: 

1.  The  judgment  debtor,  or  his  successor  in  interest,  la 
the  whole  or  any  part  of  the  property; 

2.  A  creditor  having  a  lien  by  judgment  or  mortgage  on 
the  property  sold,  or  on  some  share  or  part  thereof,  sub- 
sequent to  that  on  which  the  property  was  sold.  The  psr- 
sons  mentioned  in  the  second  subdivision  of  this  section 
are,  in  this  chapter,  termed  redemptioners.  En.  March 
11.  187?. 

Cal.  Rep.  Cit.  51,  540;  55,  175;  55,  534;  55,  535;  55, 
639;    60,  IGO;    66,  120;     66,  121;    105,  101;     105,  102; 


en  THE    EXECUTT*"^  5f  T02,  T03 

113.     555;     117,    75;     122,    512;     13?.    391;     128,    293. 

Subd.    1—71,    480;     97,   51.     Subd.    2—124,   231;     144, 

576. 
Prac.  Act,  sec.  230.    En.  April  29,  1851, 
Cal.    Rep.   Cit.     4,   143;     27,   371;     31,   300;     35,   722;     87. 

135;    44,  334;     47,  815. 
Redemption,  mode  of:  Post,  sees.  "C^  et  seq. 
Judgment  creditor,  redemption  by:    Post,  sec.  1503, 
Parties  entitled  to  redeem:  Ant»J,  sees.  346,  347. 

§  702.  When  it  may  be  redeemed,  and  redemption 
money.  The  jiulgmcut  debtor,  or  rcdcmptioucr,  may  re- 
deem the  property  from  the  purchaser  at  any  time  within 
twelve  months  after  the  sale  on  paying  the  purchaser  the 
amount  of  his  purchase,  with  one  per  cent  per  month 
thereon  in  addition,  up  to  the  time  of  redemption,  to- 
gether with  the  amount  of  any  assessment  or  taxes 
which  the  purchaser  may  have  paid  thereon  after  pur- 
chase, and  interest  on  such  amount.  And  if  the  pur- 
chaser be  also  a  creditor,  having  a  prior  lien  to  that  of 
the  redemptioner,  other  than  the  judgment  under  which 
said  purchase  was  made,  the  amount  of  such  lien  with 
interest.  En.  March  11,  1872.  Am'd,  1875-6,  96;  1895,  226; 
1897,  41. 

Cal.  Rep.  Cit.  52,  647;  55,  534;  61,  332;  68,  225;  100, 
453;  117,  74;  117,  75;  126,  417;  127,  534;  133,  518; 
134,  344;   137,  667;   137,  670;   138,  393;   146,  702. 

Prac.  Act,  sec.  231.  En.  April  29,  1851.  Am'd.  1859, 
139;  1860,  302. 

Cal.  Rep.  Cit.  4,  143;  9,  118;  47,  84;  47,  85;  52,  646; 
52,  647;  52,  648. 

§  703.  Wlien  judgment  debtor  or  other  redemptioner 
may  redeem.  If  property  be  so  redeemed  by  a  redemp- 
tioner, another  redemptioner  may,  within  sixty  days  after 
the  last  redemption,  again  redeem  it  from  the  last  re- 
demptioner on  paying  the  sum  paid  on  such  last  redemp- 
tion, with  two  per  cent  thereon  in  addition,  and  the 
amount  of  any  assessment  or  taxes  which  the  last  re- 
demptioner may  have  paid  thereon  after  the  redemption 
by  him,  with  interest  on  such  amount,  and,  in  addition, 
the  amount  of  any  liens  held  by  said  last  redemptioner 
prior  to  his  own,  with  interest,  but  the  judgment  under 
which  the  property  was  sold  need  not  be  so  paid  as  a  lien. 
The  property   may  be   again,   and   as  often    as    a  redemp- 


g  T0«  THE    EXECUTION.  IH 

tloner  Is  so  disposed,  redeemed  from  any  previous  re- 
demptioner  within  sixty  days  after  tlae  last  redemption, 
on  paying  the  sum  paid  on  the  last  previous  redemption, 
with  two  per  cent  thereon  in  addition,  and  the  amounts  of 
any  assessments  or  taxes  which  the  last  previous  redemp- 
tioner  paid  after  the  redemption  by  him,  with  interest 
thereon,  and  the  amount  of  any  Hens,  other  than  the  judg- 
ment under  which  the  property  was  sold,  held  by  the  last 
redemptloner  previous  to  his  own,  with  Interest.  Written 
notice  of  redemption  must  be  given  to  the  sheriff  and  a 
duplicate  filed  with  the  recorder  of  the  county,  and  If  any 
taxes  or  assessments  are  paid  by  the  redemptloner,  or  If  he 
has  or  acquires  any  Hen  other  than  that  upon  which  the 
redemption  was  made,  notice  thereof  must  in  like  man- 
ner be  given  to  the  sheriff  and  filed  with  the  recorder;  and 
if  such  notice  bo  not  filed,  the  property  may  be  redeemed 
without  paying  such  tax,  assessment,  or  Hen.  If  no  re- 
demption be  made  within  twelve  months  after  the  sale,  tho 
purchaser,  or  his  assignee.  Is  entitled  to  a  conveyance;  or 
if  so  redeemed,  whenever  sixty  days  have  elapsed,  and  no 
other  redemption  has  been  made,  and  notice  thereof  given, 
and  the  time  for  redemption  has  expired,  the  last  redemp- 
tloner, or  his  assignee,  is  entitled  to  a  sheriff's  deed;  but, 
in  all  cases,  the  judgment  debtor  shall  have  the  entire 
period  of  twelve  months  from  the  date  of  tho  sale  to  re- 
deem the  property.  If  the  judgment  debtor  redeem,  he 
must  make  the  same  payments  as  are  required  to  effect  a 
redemption  by  a  redemptloner.  If  the  debtor  redeem,  the 
effect  of  the  sale  is  terminated,  and  he  Is  restored  to  his 
estate.  Upon  a  redemption  by  the  debtor,  the  person  to 
whom  the  payment  Is  made  must  execute  and  deliver  to 
him  a  certificate  of  redemption,  acknowledged  or  proved 
before  an  officer  authorized  to  take  acknowledgments  of 
conveyances  of  real  property.  Such  certificate  must  be 
filed  and  recorded  in  the  ofilce  of  the  recorder  of  the  county 
In  which  the  property  is  situated,  and  the  recorder  must 
note  the  record  thereof  In  the  margin  of  the  record  of  the 
certificate  of  sale.  En.  March  11,  1872.  Am'd.  1873-4,  323; 
1895,  226;    1897,  41. 

Cal.  Rep.  Cit.  52,  647;  55,  534;  55,  535;  55,  542;  66,  120; 
66,  121;  113,  556;  124,  166;  131,  673;  138,  393;  138,  655; 
143,  667. 

Prac.    Act,    sec.    232.     En.    April    29,    1851.    Am'd.    1859, 
140;    1860,   302. 

Cal.  Rep.  Cit    9,  420;   31,  300;   52,  647. 


273  THE    EXECUTION.  g$  701-708 

Writ  of  assistance:  Sec.  682,  ante. 
Certificate,  recording:  Pol.  Code,  sec.  4237. 

5  704.  In  cases  of  redemption,  to  whom  the  payments 
are  to  be  made.  The  payments  mentioned  in  the  last  two 
sections  may  be  made  to  the  purchaser  or  redemptioner,  or 
for  him  to  the  officer  who  made  the  sale.  When  the  judg- 
ment under  which  the  sale  has  been  made  is  payable  in  a 
specified  kind  of  money  or  currency,  payments  must  be 
made  in  the  same  kind  of  money  or  currency,  and  a  tender 
of  the  money  is  equivalent  to  payment.  En.  March  11, 
1872. 

Cal.  Rep.  Clt.     122,  516;  143,  667. 

Prac.  Act,  sec.  233.     En.  April  29,  1851.    Am'd.  1863,  690. 

Cal.  Rep.  Clt.     4,  144. 

Specified  kind  of  money:  Ante,  sees.   682,  subd.  4,  692. 

5  705.  What  a  redemptioner  must  do  In  order  to  redeem. 
A  redemptioner  must  produce  to  the  officer  or  person,  from 
■whom  he  seeks  to  redeem,  and  serve  with  his  notice  to  the 
sheriff: 

1.  A  copy  of  the  docket  of  the  judgment  under  which  he 
claims  the  right  to  redeem,  certified  by  the  clerk  of  the 
court,  or  of  the  county  where  the  judgment  is  docketed,  or 
If  he  redeem  upon  a  mortgage  or  other  lien,  a  note  of  the 
record  thereof,  certified  by  the  recorder; 

2.  A  copy  of  any  assignment  necessary  to  establish  his 
claim,  verified  by  the  affidavit  of  himself,  or  of  a  subscrib- 
ing witness  thereto; 

3.  An  affidavit  by  himself  or  hla  agent,  showing  the 
amount  then  actually  due  on  the  lien.  En.  March  11,  1872. 
Cal.  Rep.  Cit.     51,  540;   113,  554;  113,  555. 

Prac.  Act,  sec.  234.     En.  April  29,  1851. 
Cal.  Rep.  Clt    14,  67;  49,  194. 

§  706.  Until  the  expiration  of  redemption  time  court 
may  restrain  waste  on  the  property.  What  considered 
waste.  Until  the  expiration  of  the  time  allowed  for  re- 
demption, the  court  may  restrain  the  commission  of  waste 
on  the  property,  by  order  granted  with  or  without  notice, 
on  the  application  of  the  purchaser  or  the  judgment  cred- 
itor. But  it  is  not  waste  for  the  person  in  possession  of  the 
property  at  the  time  of  sale,  or  entitled  to  possession  after- 

Coda  civil  Proo.— 18. 


g  707  THE   EXECUTION.  TO 

ward,  (luring  the  period  allowed  for  redemption,  to  con- 
tinue to  use  it  in  the  same  manner  in  whicti  it  was  pre- 
viously used;  or  to  use  in  the  ordinary  course  of  hus- 
bandry; or  to  make  the  necessaiy  repairs  of  buildings 
thereon;  or  to  use  wood  or  timber  on  the  property  there- 
for; or  for  the  repair  of  fences;  or  for  fuel  in  his  family, 
while  he  occupies  the  property.    En.  March  11,  1872. 

Cal.  Rep.  Cit    114,  427;   13G,  310;    138,  393. 

Prac.  Act,  sec.  235.     En.  AprU  29,  1851. 

Cal.  Rep.  Clt     22,  194. 

Waste:  Post,  sees.  745-746. 

§  707.  Rents  and  profits.  The  purchaser,  from  the  time 
of  the  sale  until  a  redemption,  and  a  redemptioner,  from 
the  time  of  his  redemption  until  another  redemption,  is 
entitled  to  receive,  from  the  tenant  in  possession,  the  rents 
of  the  property  sold,  or  the  value  of  the  use  and  occupation 
tliereof.  But  when  any  rents  or  profits  have  been  received 
by  the  judgment  creditor  or  purchaser,  or  his  or  their 
assigns,  from  the  property  thus  sold  preceding  such  re- 
demption, the  amounts  of  such  rents  and  profits  shall  be 
a  credit  upon  the  redemption  money  to  be  paid;  and  if  the 
redemptioner  or  judgment  debtor,  before  the  expiration  of 
the  time  allowed  for  such  redemption  demands  in  writing 
of  such  purchaser  or  creditor,  or  his  assigns  a  written  and 
verified  statement  of  the  amounts  of  such  rents  and  profits 
thus  received,  the  period  for  redemption  is  extended  five 
days  after  such  sworn  statement  is  given  by  such  pur- 
chaser or  his  assigns  to  such  redemptioner  or  debtor.  If 
such  purchaser  or  his  assigns  shall,  for  a  period  of  one 
month  from  and  after  such  demand,  fail  or  refuse  to  give 
such  statement,  such  redemptioner  or  debtor  may  bring  an 
action  in  any  court  of  competent  jurisdiction  to  compel  an 
accounting  and  disclosure  of  such  rents  and  profits,  and 
until  fifteen  days  from  and  after  the  final  determination 
of  such  action,  the  right  of  redemption  is  extended  to  such 
redemptioner  or  debtor.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     55.  535;   65,  361;   67,  339;   71,  596;   84,  93; 
97,  295;  116,  230;  121,  596;  121,  598;   122,  513;  125,  89. 

Prac.  Act,  sec.  236.  En.  April  29,  1851.  Am'd.  1869-70, 
106. 

Cal.  Rep.  Cit.     7,  46;   13,  516;   18,  115;   25,  354;   31,  300; 
37,   431;    38,   424. 


*75  THE  EXECUTION.  §5  708,  TW 

§  703.  If  purchaser  of  real  property  be  evicted  for 
irregularities  in  sale,  what  he  may  recover  and  from  whom. 
When  judgment  to  be  revived.  Petition  for  the  purpose, 
how  and  by  whom  made.  If  the  purchaser  of  real  property 
sold  on  execution,  or  his  successor  in  interest,  be  evicted 
therefrom  in  consequence  of  irregularities  in  the  proceed- 
irlgs  concerning  the  sale,  or  of  the  reversal  or  discharge 
of  the  judgment,  he  may  recover  the  price  paid,  with  inter- 
est, from  the  judgment  creditor.  If  the  purchaser  of 
property  at  sheriff's  sale,  or  his  successor  in  interest,  fail 
to  recover  possession  in  consequence  of  irregularity  in  the 
proceedings  converning  the  sale  or  because  the  property 
sold  was  not  subject  to  execution  and  sale,  the  court  hav- 
ing jurisdiction  thereof  must,  after  notice  and  on  motion 
of  such  party  in  interest,  or  his  attorney,  revive  the  orig- 
inal judgment  in  the  name  of  the  petitioner,  for  the 
amount  paid  by  such  purchaser  at  the  sale,  with  interest 
thereon  from  the  time  of  payment,  at  the  same  rate  that 
the  original  judgment  bore;  and  the  judgment  so  revived 
has  the  same  force  and  eifect  as  would  an  original  judg- 
ment of  the  date  of  the  revival,  and  no  more.  En.  March 
11,  1872. 

Cal.  Rep.  Cit    47,  603;   100,  102;   100.  104;   100,  105;  139, 

7;   139,  8;   139,  9. 

Prac.  Act,  sec.  237.    En.  April  29,  1851.    Am'd.  1860,  303. 
Cal.  Rep.  Cit    47,  603. 

§  709.  Party  who  pays  more  than  his  share  may  compel 
contribution.  When  property,  liable  to  an  execution 
against  several  persons,  is  sold  thereon,  and  more  than  a 
due  proportion  of  the  judgment  is  satisfied  out  of  the  pro- 
ceeds of  the  sale  of  the  property  or  one  of  them,  or  one 
of  them  pays,  without  a  sale,  more  than  his  proportion,  he 
may  compel  contribution  from  the  others;  and  when  a 
judgment  is  against  several,  and  is  upon  the  obligation  of 
one  of  them,  as  security  for  another,  and  the  surety  pays 
the  amount,  or  any  part  thereof,  either  by  sale  of  his 
property  or  before  sale,  he  may  compel  repayment  from 
the  principal.  In  such  case,  the  person  so  paying  or  con- 
tributing is  entitled  to  the  benefit  of  the  judgment,  to  en- 
force contribution  or  repayment,  if,  within  ten  days  after 
his  payment,  he  file  with  the  clerk  of  the  court  where  the 
judgment  was  rendered,  notice  of  his  payment  and  claim 
to  contribution  or  repayment    Upon  a  filing  of  such  notice. 


t  710 


Tin:    KXECUTION.  trt 


the  clerk  must  make  an  entry  thereof  In  the  margin  of  the 
docket.     En.  March  11.  1872. 

Cal.  Rep.  Jit.     59,  470;   67.  243;  75.  2C2;  96,  284;   96,  287; 
127,   368;    lo5,   93. 


§  710.  Judgments  against  officers,  ho«v  enforced.  Tho 
duly  authenticated  transcript  of  a  judgment,  for  money, 
against  a  defendant,  rendered  by  any  court  of  this  state 
may  be  filed  with  the  controller  of  the  state  of  California 
or  the  auditor  of  any  county,  city  and  county,  city,  or  other 
municipal  or  public  corporation,  from  which  money  is  ow- 
ing to  tlie  judgment  debtor  in  such  action  (and  in  case 
there  be  no  auditor  then  with  the  otDciai  who.se  duty  corre- 
sponds to  that  of  auditor)  whereupon  it  shall  be  the  duty 
of  any  such  official,  or  of  such  public  officer  with  whom 
such  transcript  shall  have  been  filed,  to  draw  his  warrant 
In  favor  of  or  to  pay  into  the  court  from  the  docket  of 
which  the  transcript  was  talicn,  so  much  of  the  money,  if 
sufficient  there  be,  over  which  such  state  of  California, 
county,  city  and  county,  city,  or  other  municipal  or  public 
corporation  of  which  he  is  an  official,  or  over  which  said 
public  officer  has  control  and  custody  and  which  belongs  to 
or  is  owing  to  the  judgment  debtor  In  the  cause  designated 
In  said  transcript  as  will  cancel  said  judgment;  the  money 
BO  paid  into  court  shall  be  a  discharge  pro  tanto  of  any 
amount  so  due  or  owing  to  such  judgment  debtor.  For 
filing  such  a  transcript  any  such  official  or  public  officer 
may  charge  a  fee  of  fifty  cents.  Upon  the  receipt  by  any 
court  of  money  under  the  provisions  of  this  act  so  much 
thereof  as  is  not  exempt  from  execution  shall  be  paid  to 
the  judgment  creditor,  the  balance  to  the  judgment  debtor. 
Such  transcript  when  so  filed,  shall  be  accompanied  by  an 
affidavit  on  behalf  of  the  person  in  whose  interest  the  same 
is  filed,  stating  the  exact  amount  at  the  time  due  on  such 
judgment,  and  that  such  person  desires  to  avail  himself  of 
the  provisions  of  this  section.     En.  Stats.  1903,  362. 

§  710.  Claimant  of  property  may  give  bond  and  release 
property.  "WTiere  property  levied  upon  under  execution  to 
satisfy  a  judgment  for  the  payment  of  money  Is  claimed, 
in  wtiole  or  in  part,  by  a  person,  corporation,  partnership 
or  association,  other  than  the  judgment  debtor,  such  claim- 
ant may  give  an  undertaking  as  herein  provided,  which 
undertaking  shall  release  the  property  in  the  undertaking 


277  THE    EXECUTION.  {§  710^4-711% 

described  from  the  lien  and  levy  of  such  execution     En 
Stats.   1903,  102. 

Cal.  Rep.  Cit.     142,  192;  142,  195;  142,  198. 

§  7^0yz^  Claim  of  property,  bond,  amount  of  and  condi- 
tions of.  Such  undertaking,  with  two  sureties,  shall  be 
executed  by  the  person,  corporation,  partnership  or  asso- 
ciation, claiming  in  whole  or  in  part,  the  property  upon 
which  execution  is  levied  in  double  the  estimated  value  of 
the  property  claimed  by  the  person,  corporation,  partner- 
ship or  association;  provided,  in  no  case  need  such  under- 
taking be  for  a  greater  sum  than  double  the  amount  for 
which  the  execution  Is  levied;  and  where  the  estimated 
value  of  the  property  so  claimed  by  the  person,  corpora- 
tion, partnership  or  association  is  less  than  the  sum  for 
which  such  attachment  is  levied,  such  estimated  value  shall 
be  stated  in  the  undertaking,  and  said  undertaking  shall  be 
conditioned  that  if  the  property  claimed  by  the  person, 
corporation,  partnership  or  association  is  finally  adjudged 
to  be  the  property  of  the  judgment  debtor,  said  person, 
corporation,  partnership  or  association  will  pay  of  said 
judgment  upon  which  execution  has  issued  a  sum  equal  to 
the  value,  as  estimated  in  said  undertaking,  of  said  prop- 
erty claimed  by  said  person,  corporation,  partnership  or 
association,  and  said  property  claimed  shall  be  described 
in  said  undertaking.     En.  Stats.  1903,  102. 

§  711.     Claim  of  profSerty,  bond,  filing,  and  serving.     Said 

undertaking  shall  be  filed  in  the  action  in  which  said  exe- 
cution issued,  and  a  copy  thereof  served  upon  the  judgment 
creditor  or  his  attorney  In  said  action.  En,  Stats.  1903 
102. 

§  711'/2'  Claim  of  property,  bond,  objections  to.  Within 
ten  days  after  the  service  of  the  copy  of  undertaking,  the 
judgment  creditor  may  object  to  such  undertaking  on  the 
ground  of  inability  of  the  sureties,  or  either  of  them,  to 
pay  the  sum  for  which  they  become  bound  In  said  under- 
taking, and  upon  the  ground  that  the  estimated  value  of 
property  therein  is  less  than  the  market  value  of  the  prop- 
erty claimed.  Such  objection  to  the  undertaking  shall  be 
made  in  writing,  specifying  the  ground  or  grounds  of  ob- 
jection, and  if  the  objection  Is  made  to  the  undertaking 
that  the  estimated  value  therein  is  less  than  the  market 


§§    712,  712  V^  THE  EXECUTION.  278 

value  of  tbp  property  claimed.  Such  objection  shall  spec- 
ify the  .judgment  creditor's  estimate  of  the  market  value 
of  the  property  claimed.  Such  written  objection  shall  be 
served  upon  the  person,  partnership,  corporation  or  asso- 
ciation giving  such  undertaking  and  claiming  the  prop- 
erty therein  described.     En.  Stats.   1903,   102. 

§  712.  Claim  of  property,  justification,  approval  and  dis- 
approval. Whi-n  the  sureties,  or  eithrr  of  them,  are 
objected  to,  the  surety  or  sureties  so  objected  to  shall 
justify  before  the  court  out  of  which  such  execution  issued, 
upon  ten  days'  notice  of  the  time  when  they  will  so  justify 
being  given  to  the  judgment  debtor  or  his  attorney.  Upon 
the  hearing  and  examination  into  the  sufTiciency  of  a 
surety,  witnesses  may  be  required  to  attend  and  evidence 
may  be  procured  and  introduced  in  the  same  manner  as  in 
trial  of  civil  cases.  Upon  such  hearing  and  examination, 
the  court  shall  make  its  order,  in  writing,  approving  or 
disapproving  the  sufTiciency  of  the  surety  or  sureties  on 
such  undertaking.  In  case  the  court  disapproves  of  the 
surety  or  sureties  on  any  undertaking,  a  new  undertaking 
may  be  filed  and  served,  and  to  any  undertaking  given 
under  the  provisions  of  this  act  the  same  objection  to  the 
sureties  may  be  made,  and  the  same  proceedings  had  a.s  in 
case  of  the  first  undertaking  filed  and  served.  En.  Stats. 
1903,   102. 

§  712V2-  Claim  of  property,  bond,  estimate  of  value  and 
new  bond.  "When  objection  is  made  to  the  undertaking 
upon  the  ground  that  the  estimated  value  of  the  property 
claimed,  as  stated  in  the  undertaking,  is  less  than  the 
market  value  of  the  property  claimed,  the  person,  corpo- 
ration, partnership  or  association  may  accept  the  estimated 
value  stated  by  the  judgment  creditor  in  said  objection, 
and  a  new  undertaking  may  be  at  once  filed  with  the  judg- 
ment creditor's  estimate  stated  therein  as  the  estimated 
value,  and  no  objection  shall  thereafter  be  made  upon  that 
ground;  if  the  judgment  creditor's  estimate  of  the  market 
value  is  not  accepted,  the  person,  corporation,  partnership 
or  association  giving  the  undertaking  shall  move  the  court 
in  which  the  execution  issued,  upon  ten  days'  notice  to  the 
judgment  creditor,  to  estimate  the  market  value  of  the 
property  claimed  and  described  in  the  undertaking,  and 
upon  the  hearing  of  such  motion  witnesses  may  be  re- 
quired to  attend  and  testify,  and  evidence  be  produced  in 


m  SUPPLEMENTARY    TO    EXECUTION.  85  713-714 

ibe  same  manner  as  In  the  trial  of  civil  actions.  Upon  the 
hearing  of  such  motion,  the  court  shall  estimate  the 
market  value  of  the  property  described  in  the  undertaking, 
and  if  the  estimated  value  made  by  the  court  exceeds  the 
estimated  value  as  stated  in  the  undertaking,  a  new  under- 
taking shall  be  filed  and  served,  with  the  market  value 
determined  by  the  court  stated  therein  as  the  estimated 
value.    En.   Stats.  1903.  103. 

§  713.     Claim  of  property,  bond,  justification  of  sureties. 

The  surtties  shall  justify  on  the  undertaking  as  required 
by  section  one  thousand  and  fifty-seven  of  the  Code  of 
Civil  Procedure.     En.  Stats.  1903,  103. 

§  713V'2-  Claim  of  property,  bond,  when  hecomes  effec- 
tual. The  undertaking  shall  become  effective  for  the 
puri)ose  herein  specified  ten  days  after  service  of  copy 
thereof  on  the  judgment  debtor,  unless  objection  to  such 
undertaking  is  made  as  herein  provided,  and  in  case  objec- 
tion is  made  to  the  undertaking  filed  and  served,  then  tlic 
undertaking  shall  become  effective  for  such  purposes  when 
an  undertaking  is  given  as  herein  provided.  En.  Stats. 
1903,  103. 


CHAPTER  IT, 

PROCEEDINGS    SUPPLEMENTARY    TO   THE   EXECUTION. 

S  714.    Debtor  required   to  answer  concerning  his  p.'cperty,    when. 

§  715.  Proceedings  to  compel  debtor  to  appear.  In  what  cases  he  maj 
be   arrested.     What   ball   may   be   given. 

S  716.  Any  debtor  of  the  judgment  debtor  niay  pay  Uie  kvtter's  credi- 
tor. 

§  717.  Examination  of  debtors  of  Judgment  debtor,  or  cf  those  having 
property    belonging    to    him. 

5  71S.     Witnes-ses   required   to   testify. 

§  719.    Judge   may   order  property   to   be  applied  on   execution. 

§  720.  Proceedings  upon  claim  of  another  party  to  property,  «  en 
denial  of  indebtedness  to  judgment  debtor. 

S  721.    Disobedience  of  orders,    bow  punished. 

§  714.  Debtor  required  to  answer  concerning  his  prop- 
erty, when.  When  an  execution  against  property  of  the 
judgment  debtor,  or  of  any  one  of  several  debtors  in  the 
same  judgment,  issued  to  the  sheriff  of  the  county  where 


§  715  SUPPLEMUNTART   TO    EXICCUTION.  ISO 

he  resides,  or  if  he  do  not  reside  in  this  state,  to  the 
Bhcrift  of  the  county  where  the  judgment-roll  is  filed,  is 
returned  unsatisfied  in  whole  or  In  part,  the  judgment 
creditor,  at  any  time  after  such  return  is  made,  is  entitled 
to  an  order  from  a  judge  of  the  court,  requiring  such  judg- 
ment debtor  to  appear  and  answer  concerning  his  property 
before  such  judge,  or  a  referee  appointed  by  him,  at  a 
time  and  place  specified  in  the  order,  but  no  judgment 
debtor  must  be  required  to  attend  before  a  judge  or  referee 
out  of  the  county  in  which  he  resides.  En.  March  11,  1872. 
Am'd.  1880,  5. 

Cal.  Rep.  Cit.  47,  132;  57,  522;  64,  343;  C8,  5CS;  72,  515; 
99,  275;  133,  317;  144,  485. 

Prac.  Act.  sec.  238.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  7,  201;  7,  202;  7,  204;  27,  320. 

Conduct  of  examination:   Ante,  sec.  718. 

Receiver,  aiding  proceedings:     Ante,  sec.  564,  subd.  4. 

§  713.  Proc.i>e«lIngs  to  C"mpel  debtor  to  aopear.  In 
what  cases  Kc  r.-'-<y  he  arreaied.  What  bail  may  be  given. 
After  the  issuing  of  an  execution  against  property,  and  upon 
proof,  by  affidavit  of  a  party  or  otherwise,  to  the  satisfac- 
tion of  a  judge  of  the  court,  thj.t  any  judgment  debtor  has 
property  which  he  unjustly  refuses  to  apply  toward  the  sat- 
isfaction of  the  judgment,  such  judge  may,  by  an  order,  re- 
quire Uie  judgment  debtor  to  appear,  at  a  specified  time  and 
place,  before  sucn  judge,  or  a  referee  appointed  by  him  to 
answer  concerning  the  same;  and  such  proceedings  may 
thereupon  be  had  for  the  application  of  the  property  of 
the  judgment  debtor  toward  the  satisfaction  of  the  judg- 
ment, as  are  provided  upon  tne  return  of  an  execution. 
Instead  of  the  order  i=cquiring  the  attendance  of  the  judg- 
ment debtor,  the  judge  r^^y,  »'pon  affidavit  of  the  judgment 
creditor,  his  agent,  or  attorney,  if  it  appear  to  him  that 
there  is  danger  of  the  debtor  absconding,  order  the  sheriff 
to  arrest  the  debtor,  and  bring  him  before  such  judge. 
Upon  being  brought  before  the  judge,  he  maj  be  ordered 
to  enter  into  an  undertaking,  with  sufficient  surety,  that  he 
■will  attend  from  time  to  time  before  the  judge  or  referee, 
as  may  be  directed  during  the  pendency  of  proceedings 
and  until  the  final  termination  thereof,  and  will  not  in  the 
ipjAntime  dispose  of  any  portion  of  his  property  not 
exempt  from  execution.     In  default  of  entering  into  such 


281  SUPPLEMENTART  TO  EXECUTION.  |§  716,  717 

undertaking  he  may  be  comnaitted  to  prison.     En.  March 
11,   1872.     Am'd.    1880,   5;    1880,   6. 

Cal.  Rep.  Cit.  57,  522;  72,  514;  72,  515;  72,  516;  116,  374; 

119,  382;   119,  439. 
Prac.  Act,  sec.  239.    En.  April  29,  1851.    Am'd,  1854,  63. 
Cal.  Rep.  Cit.  7,  201;  7,  202;   7,  204. 

Witnesses  may  be  required  to  appear  and  answer:  Post, 
sec.  718. 

Application  of  property,  of  Judgment  debtor,  to  satis- 
faction of  judgment:     Post,  sec.  719. 

Arrest  of  debtor,  as  provisional  remedy:  Ante,  sees. 
478-504. 

Discharge  of  persons  imprisoned,  on  civil  process:  Post, 
sees.  1143-1154. 

§  716.  Any  debtor  of  the  judgment  debtor  may  pay  the 
latter's  creditor.  After  the  issuing  of  an  execution  against 
property,  and  before  its  return,  any  i-s-son  indebted  to 
the  judgment  debtor  may  pay  to  the  nneriff  the  aitiount 
Oi  his  debt,  or  so  n-uch  tLeiaof  as  may  bs  necessary  to 
satisfy  the  execution;  and  the  cberiff's  receipt  is  a  suf- 
ficient discharge  for  the  anuuixt  s.'  paid.  Eti.  March  11, 
1872. 

Cal.  Rep.  Cit.  57,  522;  95,  336;  S9,  2-M;  103,  659;  103,  660. 

Prac.  Act,  sec.  240.    E^.  April  29,  1851. 

Cal.  Rep.  Cit  7,  201;  22,  IT/;  33,  528;  33,  529. 

Attachment:     Compare  sec.  544. 

§  717.  Examination  or"  debtors  of  Judgment  debtor,  or 
of  tf.ose  having  property  belonging  to  him.  After  the  is- 
suing or  return  of  an  execution  against  property  of  the 
judgment  debtor,  or  of  any  one  of  several  debtors  in  the 
same  judgment,  or  upon  proof  by  affidavit  or  otherwise,  to 
the  satisfaction  of  the  judge,  that  any  person  or  corpora- 
tion has  property  of  such  judgment  debtor,  or  is  indebted 
to  him  in  an  amount  exceeding  fifty  dollars,  the  judge  may, 
by  an  order,  require  such  person  or  corporation,  or  any 
officer  or  member  thereof,  to  appear  at  a  specified  time  and 
place  before  him,  or  a  referee  appointed  by  him,  and 
answei  concerning  the  same.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  57,  522;  61,  435;  87,  182;  93,  648;  101,  325; 
113,  431;  116,  374;  119,  382;  124,  564;   128,  168. 


55  718-730  SUPPLITMENTART   TO    EXECUTION.  Bi 

Prac.  Act,  sec.  241.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  7,  201;  7,  202;  9.  2G5;  2G,  589;  38,  523. 

Receiver:     Ante,  sec.  564. 
Referee:     Ante,  sec.  714, 

§  718.  Witnesses  required  to  testify.  Witnesses  may  bo 
required  to  appear  and  testify  befnro  the  judp;e  or  referee, 
upon  any  proceeding  under  this  chapter  in  the  s;inio  man- 
ner as  upon  the  trial  of  an  issue.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  57,  522;   87,  182;   113.  431. 

Prac.  Act,  sec.  242.     En.  April  29,  1851. 

CaJ.  Rep.  Cit  9,  265;    20,  589. 

Witnesses,  rights  and   duties  of:    Sees.   2064-2070. 

§  719.  Judge  may  order  property  to  be  applied  on  execu- 
tion. The  judge  or  referee  may  order  any  property  of  a 
judgment  debtor,  not  exempt  from  exectition.  In  the  hands 
of  such  debtor,  cr  any  other  person,  or  due  to  the  judgment 
debtor,  to  be  applied  toward  the  satisfaction  of  the  judg- 
ment.   En.  March  li,  1872. 

Cal.  Rep.  Cit.  47,  132;  56,  265;  57,  522;  87,  182;  113,  431; 
119,  439;  124,  564. 

Prac.  Act,  sec.  243.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  7,  202;  7,  204;  9,  265;  26,  589;  38,  524;  38,  525. 

Exempt  from  execution,  what  Is  generally:  Ante,  sec.  690. 
Wages,  etc.:     Sec.  1206. 

§  720.  Proceedings  upon  claim  of  another  party  to  prop- 
erty, or  on  denial  of  indebtedness  to  judgment  debtor.  If 
it  appears  that  a  person  or  corporation,  alleged  to  have 
property  of  the  judgment  debtor,  or  to  be  indebted  to 
him,  claims  an  interest  in  the  property  adverse  to  him,  or 
denies  the  debt,  the  court  or  judge  may  authorize  by  an 
order  made  to  that  effect,  the  judgment  creditor  to  insti- 
tute an  action  against  such  person  or  corporation  for  the 
recovery  of  such  interest  or  debt;  and  the  court  or  judge 
may,  by  order,  forbid  a  transfer  or  other  disposition  of  such 
Interest  or  debt,  until  an  action  can  be  commenced  and 
prosecuted  to  judgment.  Such  order  may  be  modified  or 
vacated  by  the  judge  granting  the  same,  or  the  court  in 
which  the  action  is  brought,  at  any  time,  upon  such  terms 
as  may  be  just.     En.   March  11,  1872. 


2S3  SUPPLEMENTARY    TO    EXECUTION.  ^  TO 

Cal.  Rep.  Cit.  51,  502;  56,  265;  56,  266;  57,  522;  61,  435; 
64,  358;  86,  616;  87,  182;  90,  565;  95,  386;  95,  387; 
101,  325;  103,  527;  108,  528;  109,  83;  109,  84;  109.  85; 
113,  431;   116,  372. 

Prac.  Act,  sec.  244.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  9,  26b;  9,  266;  38,  524;  38,  525;  38,  526; 
38,  527. 

Receiver:     Ante,  sec.  564. 
Wages,  etc.:   Sec.  1206. 

§  721.  Disobedience  of  orders,  how  punished.  If  any 
person,  party,  or  witness  disobey  an  order  of  the  referee, 
properly  made  in  the  proceedings  before  him,  under  this 
chapter,  he  may  be  punished  by  the  court  or  judge 
ordering  the  reference,  for  a  contempt.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.  47,  132;  57,  522;  68,  568;  99,  274;  133,  317. 

Prac.  Act,  sec.  245.     En.  April  29,  1851. 
Contempt:     Sees.  1209  et  seq. 


{  7:«  Fom^cuo^UKib  oi-  AiuuxuAUisa. 


tttlp:  X. 

ACTIONS  IN  PARTICULAR  CARES. 

Chapter  I.     Actions     for     the    Foreclosure    of    MortRagca, 
§  §  726-729. 
II.     Actions  for  Nuisance,  Waste  and  Willful  Tres- 
pass,  in   Certain   Cases,   on   Real  Property, 
8  §  731-735. 

III.  Actions  tf.  Determine  Conflicting  Claims  to 
Real  Property,  and  Other  Provisions  Re- 
lating to  Actions  Concerning  Real  Estate, 
§  §  /38-751. 

rv.     Actions   for   the   Partition    of    Real    Property, 
§  §  752-801. 
V.    Actions    for    the    Usurpation   of   an     Office     or 
Franchise.  §  §  802-810. 

■\T.     Of    Actions    Against    Steamers,    Vessels,    and 

VI  Of  Actions  Against  Steamers,  Vessels,  and 
Boats,  §  §  813-827. 


CHAPTER  I. 
AcrriONS  POR  the  foreclosure  of  mortoaobmi. 

g  726.  Proceedings    In    foreclosure   suits. 

§  727.  Surplus   money    to   be   deposited    In   court. 

§  7-8.  Proceedings   when   debt   secured    falls    due  at   different   Umea. 

§  729.  Oath   and   undertaking   of   commissioner. 

§  726.  Proceedings  In  foreclosure  suits.  There  can  be 
but  one  action  for  the  recovery  of  any  debt,  or  the  en- 
forcement of  any  right  secured  by  mortgage  upon  real  or 
personal  property,  which  action  must  be  in  accordance 
with  the  provisions  of  this  chapter.  In  such  action  the 
court  may,  by  Its  judgment,  direct  the  sale  of  the  encum- 
bered property  (or  so  much  thereof  as  may  be  necessary), 
and  the  application  of  the  proceeds  of  the  sale  to  the 
payment  of  the  costs  of  court,  and  the  expenses  of  the 
sale,  and  the  amount  due  plaintiff  including,  where 
the  mortgage  provides  for  the  payment  of  attorney's  fees, 
such  sum  for  such  fees  as  the  court  shall  find  reasonable. 


28S  FORECLOSURE    OF    MORTGAGES,  g  729 

not  exceeding  the  amount  named  in  the  mortgage.  The 
court  may,  by  its  judgment,  or  at  any  time  after  judg- 
ment, appoint  a  commissioner  to  sell  the  encumbered  prop- 
erty. It  must  require  of  him  an  undertaking  in  an  amount 
fixed  by  the  court,  with  sufficient  sureties,  to  be  approved 
by  the  Judge,  to  the  effect  that  the  commissioner  will  faith- 
fully perform  the  duties  of  his  office  according  to  law. 
Before  entering  upon  the  discharge  of  his  duties  he  must 
file  such  undertaking,  so  approved,  together  with  his  oath 
that  he  will  faithfully  perform  the  duties  of  his  office. 
Ii:  it  appear  from  the  sheriff's  return,  or  from  the  commis- 
sioner's report,  that  the  proceeds  are  Insufficient,  and  a 
balance  still  remains  due,  judgment  must  then  be  docketed 
by  the  clerk,  in  the  manner  provided  in  this  code  for  such 
balance  against  the  defendant  or  defendants  personally 
liable  for  the  debt,  and  it  becomes  a  Hen  on  the  real  estate 
of  such  Judgment  debtor,  as  in  other  cases  in  which  execu- 
tion may  be  issued.  No  person  holding  a  conveyance  from 
or  under  the  mortgagor  of  the  property  mortgaged,  or 
having  a  lien  thereon,  which  conveyance  or  lien  does  not 
appear  of  record  in  the  proper  office  at  the  time  of  the 
commencement  of  the  action,  need  be  made  a  party  to 
such  action,  and  the  judgment  therein  rendered,  and  the 
proceedings  therein  had,  are  as  conclusive  against  the 
party  holding  such  unrecorded  conveyance  or  lien  as  If 
he  had  been  a  party  to  the  action.  If  the  court  appoints  a 
commissioner  for  the  sale  of  the  property,  he  must  sell  it 
in  the  manner  provided  by  law  for  the  sale  of  like  prop- 
erty by  the  sheriff  upon  execution;  and  the  provisions  of 
chapter  one,  title  nine,  part  two,  of  this  code  are  hereby 
made  applicable  to  sales  made  by  such  commissioner,  and 
the  powers  therein  given  and  the  duties  therein  imposed 
on  sheriffs  are  extended  to  such  commissioner.  In  all 
cases  heretofore,  now  or  hereafter  pending  in  the  courts 
ol  this  state,  in  the  event  of  the  death,  absence  from  the 
state,  other  disability  or  disqualification  of  the  commis- 
sioner appointed  to  sell  encumbered  property  under  the 
foregoing  provisions  of  this  section,  the  court  may,  upon 
the  happening  of  either  the  death,  absence  from  the  state, 
otber  disability  or  disqualification  of  the  commissioner, 
appoint  an  elisor  to  perform  the  duties  of  such  commis- 
sioner which  are  then  to  be  performed  In  such  action. 
The  elisor  so  appointed  shall  give  the  undertaking,  and 
take  the  oath  hereinbefore  provided  to  be  given  and 
taken  by  a  commissioner,  before  entering  upon  the  dis- 
charge of  his  duties,  and  shall  thereafter  perform  all  duties 
left   unperformed   by   the   commissioner   whom   he   is    ap- 


{  72«  FORECLOSUHE    OF    MORTOAOES.  ■• 

pointed  to  succeed,  with  Hke  effect  as  If  such  duties  had 
been  performed  by  the  commissioner.  If  the  land  mort- 
gaged consists  of  a  singie  parcel,  or  of  two  or  more  con- 
tiguous parcels,  situated  in  two  or  more  counties,  the 
court  may,  in  its  Judgment,  direct  the  whole  thereof  to 
be  sold  in  one  of  such  counties  by  the  sheriff,  commissioner 
or  elisor,  as  the  case  may  be,  and  upon  such  proceedings, 
p.nri  with  Uke  effect,  as  if  the  whole  of  the  property  were 
situated  in  that  county.  En.  March  11,  1872.  Am'd.  1S93, 
118;  1895,  99;  1900-01,  48. 

Cal.  Rep.  Cit.  49,  679;  51,  242;  53,  39;  54.  C14;  55.  20 
55.  533;  57,  10;  58,  58;  G2,  630;  63.  367;  63.  560 
64.  232;  64,  862;  65,  513;  66,  98;  66,  835;  67,  236 
67.  584;  72,  260;  77,  59;  78.  200;  79.  121;  80.  248 
80.  353;  SO.  355;  84.  156;  84.  157;  84,  158;  84.  176 
87.  161;  89,  487;  97,  289;  98,  493;  98,  494;  99,  418 
102,  268;  102.  269;  102.  271;  103.  643;  104.  271;  105.  417 
106,  19G;  106.  197;  113,  466;  113,  467;  114,  128;  116,  119 

117.  342;  117.  482;  118,  98;  118,  335;  118.  336;  118,  341 

118,  420;  119,  22;  119, 291;  120,  497;  120,  498;  120,  499 
120.  500;  12i.  33;  121.  34;  121.  197;  121.  198;  121.  296 
122.  36;  123.  215;  124.  166;  124,  417;  126.  109;  126.  286 
126.  586;  127,  SO;  127,  475;  127,  477;  127,  616;  127.  620 
128,  491;  1-  .,  492;  129.  163;  129,  164;  130.  514;  130,  515 
133,  61;  133.  684;  134.  446;  136.  535;  137.  203;  13?  71 
138.  260;  140,  81;  140.  194;  140,  380;  141,  385;  141,  356 
142,  473;  142.  476;  143,  77;  143.  475;  144,  66;  1.5,  550 
145.  551;  145,  553;  145,  554;  146,  7;  146,  IG. 

Prac.  Act,  sec.  246.  En.  April  29,  1851.  Am'd.  I?o0,  303; 
1861,  306;  18S6,  704. 

Cal.  Rep.  Clt.  9,  551;  22,  125;  25,  347;  25,  li9;  26,  580; 
27,  271;  28,  524;  28.  526;  Z^,  623;  33,  483;  88,  355; 
39,  805;  4£,  P42]   5C,  518;  52,  671. 

Assistance,  writ  of:     See  sec.  1210. 

Act  authorizin?'  court  to  dx  fee  on  foreclosure:  See 
post.  Appendix,  title  Mortgages. 

Injunction  to  restrain  waste  by  party  in  possession: 
Post,  sec.  745. 

Judgment  by  default:  Ante,  sec.  585.  Relief:  Ante, 
sees.  58C,  585. 

Personal  property,  mortgage  of — Remedies:  See  Civ. 
Code,  sees.  23C6-3011;   post,  sec.   2967. 

Place  of  trial:     Ante,  sec.  392. 

Pleading  written  document:     Ante,  sees.  447-449. 


287  FORECT.CSUnE    OF   MORTGAGES.  §§  727-7-19 

Foreclosure  necessary  to  obtain  possession:  Post,  sec 
744. 

Receiver:     Ante,  sec.  564. 

Lis  pendens:  Ante,  sec.  409. 

Several  mortgages  or  debts,  installments,  etc.:  Post, 
sec.  728. 

Tender:     Post,  sec.  997. 

§  727.  Surplus  money  to  be  deposited  in  court.  If  there 
be  surplus  money  remaining  after  payment  of  the  amount 
due  on  the  mortgage,  lien,  or  encumbrance  with  costs, 
thj  court  may  cause  the  same  to  be  paid  to  the  person 
entitled  to  it,  and  in  the  meantime  may  direct  it  to  be 
deposited  in  court.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  73,  268;   104,  271. 

Prac.  Act,  sec.  247.     En.  April  29.  1851. 

Deposit  in  court:  Ante,  sees.  572,  573,  674;  post,  sec. 
2104. 

§  728.  Proceedings  when  debt  secured  falls  due  at  dif- 
ferent times.  If  tiie  debt  for  which  the  mortgage,  lien, 
or  encumbrance  is  held,  is  not  all  due,  so  soon  as  sufficient 
of  the  property  has  been  sold  to  pay  the  amount  due, 
with  costs,  the  sale  must  cease;  and  afterwards,  as  often 
as  more  becomes  due,  for  principal  or  interest,  the  court 
may,  on  motion,  order  more  to  be  sold.  But  if  the  prop- 
erty cannot  be  sold  in  portions,  without  Injury  to  the 
parties,  the  whole  may  be  ordered  to  be  sold  in  the  first 
Instance,  and  the  entire  debt  and  costs  paid,  there  being 
a  rebate  of  interest  where  such  rebate  is  proper.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  62,  502;  92,  675;  97,  289;  104.  271;  126.  287; 

129,  186;  129,  187;  129.  188;  131,  189;  133,  256. 
Prac.  Act,  sec.  248.     En.  April  29,  1851. 
Cal.  Rep.  Cit.  33,  528;   45,  166;  129,  187. 

§  729.     Oath     and     undertaking     of    commissioner.     The 

commissioner,  before  entering  upon  his  duties,  must  be 
sworn  to  perform  them  faithfully,  and  the  court  making 
the  appointment  shall  require  of  him  an  undertaking, 
with  sufficient  sureties,  to  be  approved  by  the  court,  in 
an  amount  to  be  fixed  by  the  court,  to  the  effect  that 
he  will  faithfully  perform  the  duties  of  commissioner, 
according  to  law.  Within  thirty  days  after  such  sale, 
the  commissioner  must  file  with  the  clerk  of  the  court  in 
which  the  action  is  pending  a  verified  report  and  account 


I  Til  ACTIONS    ron    NUISXNCE.    ETC.  OS 

of  the  sale,  together  with  the  proper  affidavits,  showing 
that  the  regular  and  required  notice  of  the  time  and 
place  of  the  sale  was  given,  which  report  and  account  shall 
have  the  same  force  and  effect  as  the  sheriff's  return  in 
salf'S  under  execution.  In  all  cases  of  sales  made  hy  a 
commissioner,  the  court  In  which  the  proceedings  are  pend- 
ing shall  fix  a  reasonable  compensation  for  the  commis- 
sioner's services,  but  in  no  case  to  exceed  the  sum  of  ten 
dollars.     En.  Stats.  1S93,  119. 

Cal.  Rep.  Cit  130,  629. 


CHAPTER  n. 

ACTIONS    FOR    NTTTSANCR.     W.\STE.     AND    Wn.T-FUL,    TnE:SPA8a. 
IN    CERTAIN    CASES    ON    REAL,    PROPERTY. 

§  7S1.  Niilsanc*  rtednpil.    and  actions  for. 

§  7S2.  Wa»t'',    actions    for, 

5  7X5.  Tn  sii.-i.<w    for    ruttlnff    or    carnMnR    away    tr«><^s,    etc.,    octlona    for. 

5  7M.  Mo.asuro    of    damnR.'S    In    certain    cases    uniler    the    last    section. 

5  735.  Damages  Is   actions  for  forcible  entry,   etc.,   may  be  trebled. 

5  731.  Nuisance  defined,  and  actions  for.  An  action 
may  be  brought  by  any  person  whose  property  is  injuriously 
affected,  or  whose  personal  enjoyment  is  lessened  by  a  nuis- 
ance, as  the  same  Is  defined  In  section  thirty-four  hundred 
and  seventy-nine  of  the  Civil  Code,  and  by  the  judgment 
in  such  action  the  nuisance  may  be  enjoined  or  abated  as 
well  as  damages  recovered  therefor.  A  civil  action  may  be 
brought  in  the  name  of  the  people  of  the  State  of  California 
to  abate  a  public  nuisance,  as  the  same  is  defined  in  section 
thirty-four  hundred  and  eighty  of  the  Civil  Code,  by  the 
district  attorney  of  any  county  in  which  such  nuisance  ex- 
ists, or  by  the  city  attorney  of  any  town  or  city  in  which 
such  nuisance  exists,  and  each  of  said  oflicers  shall  have 
concurrent  right  to  bring  such  action  for  a  public  nuisance 
existing  within  a  town  or  city,  and  such  district  attorney,  or 
city  attorney,  of  any  county  or  city  in  which  such  nuisance 
exists  must  bring  such  action  whenever  directed  by  the 
board  of  supervisors  of  such  county  or  whenever  directed 
by  the  legislative  authoritv  of  such  town  or  city.  En. 
March  11,  1872.     Am'd.  1005,  130. 

Cal.  Rep.  Cit.  50,  594;  51,  144:  65,  455;  66,  151;  66,  174; 
78.  464;  78,  616;  80,  343;  89,  29;  103,  238;  115,  463; 
128.  496;   130,  379;   141,  363;  144,  545;   146,  57. 

Prac.  Act,  sec.  249.     En.  April  29,  1S51. 

Cal.  Rep.  Cit.  29,  159;  30,  575;  50,  194;  50,  594. 


J»  ACTIONS    FOR    NUISANCE,    ETC.  §§  732-734 

Nuisance — Definition:  Compare  Civ.  Code,  sees.  3470, 
3480,  3481;  also,  see  Civ.  Code,  sees.  3482,  3483,  3490;  dam- 
ages:    Civ.  Code,  sec.  3484. 

Lapse  of  time  cannot  leg^allze  public:  Civ.  Code,  sec 
3490;   private  action  for  public  nuisance:   Idem,  sec.  3493. 

Common-law  remedy:  Ante,  sec.  18. 

Power  of  board  of  bealth  to  abate  In  San  Francisco: 
See  Pol.  Code,  sec.  3028. 

§  732.  Waste,  actions  for.  If  a  guardian,  tenant  for  life 
or  years,  joint  tenant,  or  tenant  in  common  of  real  prop- 
erty, commit  waste  thereon,  any  person  aggrieved  by  the 
waste  may  bring  an  action  again.st  him  therefor,  ir  which 
action  there  may  be  judgment  for  treble  damages.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  64,  138;  64,  14&;  135,  310;  140.  679;  140,  680; 
142,  667, 

Prac.  Act,  sec.  250.     En.  April  29,  1S51. 

Cal.  Rep.  CIt  29,  513. 

Waste:     Anta,  sec.  74t;  enjoining:     Ante,  sec.  745. 

§  733.  Trespass  for  cutting  or'  carrying  away  trees,  etc., 
actions  (-■.'.  Any  person  who  cuts  down  or  carries  olT  any 
wood  or  underwood,  tree  or  timber,  or  girdles  or  otherwise 
Inj'Ures  any  tree  or  timber  on  the  land  of  another  person, 
or  on  the  street  or  highway  in  front  of  any  person's  house, 
village  or  city  lot,  or  cutlvated  grounds;  or  on  the  com- 
mons or  public  grounds  of  any  city  or  town,  or  on  the 
street  or  highway  in  front  thereof,  without  lawful  author- 
ity, Is  liable  to  the  owner  of  such  land,  or  to  such  city  or 
town,  for  treble  the  amount  of  damages  which  may  be 
assessed  therefor,  In  a  civil  action,  In  any  court  having 
jurisdiction.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  108,  201;  108,  205;  108,  206;  108,  207;  140, 
680. 

Prac.  Act,  sec.  251.    En.  April  29,  1851 
Cal.  Rep.  Cit.  51,  304;   51,  306;   108,  205. 
Treble  damages  for  Injuries  to  trees:     See  Ov.   Code, 
sec.  3346. 

§  734.     Measure  of  damages   In  certain  cases  under  the 

last   section.     Nothing   in   the  last   section  authorizes   the 

recovery  of  more  than  the  just  value  of  the  timber  taken 

from   uncultivated   woodland,   for   the   repair   of   a   pubUc 

Code  CivU  Proc-tt. 


S§  735,  7M  CONFLICTTING    CLAIMS.  aW 

highway  or   bridge   upon   the   land,   or  adjoining   it.     En- 
March  11,  1872. 

Prac.  Act,  sec.  252.     Ehi.  April  29,  1851. 

Cal.  Rep.  Cit.  1,  396;  1.  438. 

§  735.  Damages  in  actions  for  forcible  entry,  etc.,  may 
be  trebled.  If  a  person  recover  damages  for  a  forrihle 
or  unlawful  entry  in  or  upon,  or  detention  of,  any  building, 
or  any  cultivated  real  property,  judgment  may  he  entered 
for  three  times  the  amount  at  which  the  actual  damages 
are  assessed.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  138,  283. 

Prac.  Act,  sec.  253.     Eb.  April  29,  1851. 

Forcible  entry  and  unlawful  detainer,  treble  damages: 
Post,  sec.  1174. 

Treble  damages:     See  Civ.  Code,  sec.  3345. 


CHAPTER  m. 

ACTIONS  TO  DFTFTRMTNE  CONFT.ir-rTNO  rt^AIMS  TO  RKAL. 
PROPERTY.  AND  OTHER  PROVISIO.NS  RELATING  TO  AC- 
TIONS   CONCERNING    REAL    ESTATE. 

5  7S8.    Action    to   qulfrt    title;    tmst   under   will;    Jnry    trial. 

§  7S9.    When  plaintiff  cannot   recover  costs. 

§  740.  If  plaintiffs  title  terminates  pending:  the  enlt,  what  he  may 
recover,   and   how   verdict  and   Judgment   to  be. 

5  741.    When  value   of  Improvements  can  be  allowed   as  a  setofT. 

§  742.  An  order  may  be  made  to  allow  a  party  to  survey  and  meas- 
ure   the   land   In    dispute, 

§  743.  Order,  what  to  contain,  and  how  served.  If  unnocpssary  Injury 
done,    the    party   surveying    to   be   liable    therefor. 

5  744.  A  morti^agre  must  not  be  deemed  a  conveyance,  whatever  its 
terms. 

§  745.  When  coart  may  prant  Injunction;  during  foreclosure,  after 
sale   on    execution,    before   conveyance. 

5  746.  Damages  may  be  recovere\i  for  Injury  to  the  possession  after 
sale  and  before  delivery  of  possession. 

(S  74T.    Action  not   to  be  prejudiced  by  alienation,   pending  suit. 

5  748.     Mining  claims,   actions  concerning  to  be  governed  by  local   rules. 

is  749.    How   service   may   be   made   In   action   relating   to   real   property. 

5  749.    rvetermlnation   of  adverse  claim   of  unknown  owner. 

5  ^T^0.     Notice   to   unknown    owners,    hovr  served. 

S  751.    Judgment  to  be   in   accordance  with   evidence. 

§  738.     Action  to  quiet  title;  trust  under  will;  Jury  trial. 

An  action  may  be  brought  by  any  person  against  another 
who  claims  an  estate  or  interest  in  real  property,  adverse 
to  him,  for  the  purpose  of  determining  such  adverse  claim; 
provided,  however,  that  whenever  in  an  action  to  quiet 
title  to,  or  to  determine  adverse  claims  to,  real  property. 


291  CONFUCTING   CLAIMS.  55  739,  Ki 

the  validity  of  any  gift,  devise,  or  trust,  under  any  will, 
or  instrument  purporting  to  be  a  will,  whether  admitted 
to  probate  or  not,  shaii  be  involved,  such  will,  or  instru- 
ment purporting  to  be  a  will,  is  admissible  in  evidence; 
and  all  questions  concerning  the  validity  of  any  gift,  de- 
vise, or  trust  therein  contained,  save  such  as  under  the 
constitution  belong  exclusively  to  the  probate  jurisdiction, 
shall  be  finally  determined  in  such  action;  and  provided 
however,  that  nothing  herein  contained  shall  be  con- 
strued to  deprive  a  party  of  the  right  to  a  jury  trial  In  any 
case  where,  by  the  law,  such  right  is  now  given.  En.  March 
11,  1872.     Am'd.  1895,  73. 

Cal.  Rep.  Cit.  52,  433;    53,  19;    53,  398;   53,  654;   56,  247 

65,  404;    65,  605;   66,  338;    66,  555;    66,  559;    66,  562 

66,  563;  66,  565;  67,  484;  69,  593;  71,  186;  71,  188 
73,  96;  73,  552;  74,  497;  74,  498;  74,  499;  75,  123 
77,  296;  77,  352;  79,  300;  79,  446;  80,  340;  80,  342 
80,  465;  81,  130;  83,  592;  83,  608;  83,  609;  83,  614 
84,  467;  86,  361;  86,  557;  86,  564;  86,  582;  87,  53 
88.  123;  .8,  127;  89,  599;  90,  3;  90,  343;  92,  10 
92,  14;  94,  368;  94,  466;  94.  467;  98,  419;  103,  217 
108,  676;  109,  59;  111.  600;  116,  500;  117.  61;  120.  516 
122,  544;  125.  672;  126,  474;  127,  509;  127,  510;  129,  677 
132,  696;  132,  697;  134,  336;  135,  612;  136,  483;  137,  473 
138,  156;  147,  5. 

Prac.  Act,  sec.  254.    En.  April  29,  i?51. 

Cal.  Rep.  Cit.  9,  271;  13,  114;  15.  262;  21.  24S;  21,  510 
25,  44;  25,  252;  25.  437;  25,  518;  28,  202;  28,  647 
28,  649;  28,  655;  29,  57;  31,  287;  32,  110;  32,  628 
34,  371;  34,  559;  34,  565;  35,  34;  36,  314;  36,  321 
37,  307;  37.  440;  39,  17;  39,  19;  41,  62;  42,  644 
43,  215;  56,  248;  79,  446;  80.  465. 

Determining  claim  to  personalty:    Post,  sec  1050. 

Parties:     Ante,  sees.  379,  380,  381. 

§  739.     When    plaintiff    cannot    recover    costs,    tf     the 

defendant  in  such  action  disclaim  in  his  answer  any  In- 
terest or  estate  in  the  property,  or  suffer  Judgment  to  be 
taken  against  him  without  answer,  the  plaintiff  cannot 
recover  costs.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  79,  447;  83,  598;  83,  609;  126,  148. 

Prac.  Act,  sec.  255.    En.  April  29,  1851. 

Costs:     Post,  sees.  1022  et  seq. 

§  740.     If  plaintiff's  title    terminates    pending  the    suit, 
what  he  may  recover,  and  how  verdict  and  judgment  to  b«. 


{§  741,  142  CONFUCTLNG   CLAIMS.  TK 

In  an  action  for  the  recovery  of  real  property,  where  the 
plaintiff  shows  a  right  to  recover  at  the  time  the  action 
was  commemced,  but  it  appears  that  his  right  has  ter- 
minated during  the  pendency  of  the  action,  the  verdict  and 
judgment  must  be  according  to  the  fact,  and  the  plain- 
tiff may  recover  damages  for  withholding  the  property.  En. 
March  11,  1872. 

i*rac.  Act,  sec.  l!56.    En.  April  29,  1851. 

Cal.  Rep.  Cit  27,  246;  28,  448;   30,  473;   30,  475;  30,  476; 
30,  477. 

Pendency  of  action:     Post,  sec.  1049. 

9  741.  When  value  of  Improvements  can  be  allowed  as  a 
setoff.  When  damages  are  claimed  for  withholding  the 
property  recovered,  upon  which  permanent  improvements 
have  been  made  by  a  defendant,  or  those  under  whom  he 
claims,  holding  under  color  of  title  adversely  to  the  claim 
oi  the  plaintiff,  in  good  faith,  the  value  of  such  improve- 
ments must  be  allowed  as  a  setoff  against  such  damages. 
En.  March  11,  1872. 

Cal.  Rep.  Cit  73,  175;  82,  127;  85,  401;  108,  210. 

Prac.  Act,  sec.  257.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  14,  467;  18,  696;  31,  495;  35,  355. 

Counterclaim. — Unless  defendant  sets  it  up,  it  is  waived: 
Ante,  sec.  439.    Counterclaim  generally:  Ante,  sec.  438. 

§  742.  An  order  may  be  made  to  allow  a  party  to  survey 
and  measure  the  land  in  dispute.  The  court  in  which  an 
action  is  pending  for  the  recovery  of  real  property,  or  for 
d'i^mages  for  an  injury  thereto,  or  a  judge  thereof,  may, 
on  motion,  upon  notice  by  either  party,  for  good  cause 
ffaown,  grant  an  order  allowing  to  such  party  the  right 
to  enter  upon  the  property  and  make  survey  and  meas- 
TO-ement  thereof,  and  of  any  tunnels,  shafts,  or  drifts  there- 
in, for  the  purpose  of  the  action,  even  though  entry  for 
Buch  purpose  has  to  be  made  through  other  lands  belong- 
ing to  parties  to  the  action.  En.  March  11,  1872.  Am'd. 
U^O,  11. 

Prac.  Act,  sec.  258.     En.  April  29,  1851.     Am'd.  1860,  304. 

Order  for  survey  where  title  to  land  in  two  counties  dis- 
pTited:    See  Pol.  Code,  sec.  4270. 


298  CONFLICTING    CLAIMS.  §§  7«-74« 

§  743.  Order,  what  to  contain,  and  how  served.  If  un- 
necessary injury  done,  the  party  surveying  to  be  liable 
therefor.  The  order  must  describe  the  property,  and  a 
copy  thereof  must  be  served  on  the  owner  or  occupant; 
and  thereupon  such  party  may  enter  upon  the  property, 
with  necessary  surveyors  and  assistants,  and  make  such 
survey  and  measurement;  but  if  any  necessary  irjury  be 
done  to  the  property,  he  is  liable  therefor.  En.  March  11, 
1872. 

Prac.  Act,  sec.  259.     En.  April  29,  1851. 

!5  744.  A  mortgage  must  not  be  deemed  a  conveyance, 
whatever  its  terms.  A  mortgage  of  real  property  shall  not 
be  deemed  a  conveyance,  whatever  its  terms,  so  as  to 
enable  the  owner  of  the  mortgage  to  recover  possession  of 
the  real  property  without  a  foreclosure  and  sale.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  57,  482;   57,  483;   62,  630;   66,  615;   76,  180; 

98,  494;   100,  254;   120,  179. 
Prac.  Act,  sec.  260.    En.  April  29,  1851. 
Cal.  Rep.  Cit.   14,  264;    17,  591;    17,   592;    22,  261;    29,  19; 
29,  255;  36,  48;  36,  51;  36,  59;  36,  63;  76,  180;  144    32; 
144,  33. 
Conveyance    deemed    mortgage:      Civ.    Code,    sees.    2924, 
2925;  proof:     Civ.  Code,  sec  2925;  mortgagee's  possession: 
Civ.  Code,  sec.  2927. 

§  745.  When  court  may  grant  Injunction;  during  fore- 
closure, after  sale  on  execution,  before  conveyance.  The 
court  may  by  injunction,  on  good  cause  shown,  restrain 
the  party  in  possession  from  doing  any  act  to  the  injury 
of  real  property  during  the  foreclosure  of  a  mortgage 
thereon;  or,  after  a  sale  on  execution,  before  a  conveyance. 
En.  March  11,  1872. 

Prac.  Act,  sec.  261.    En.  April  29,  185L 

Cal.  Rep.  Cit.  80,  497. 

Injunction,  generally:   Ante,  sees.  525-533. 
Receiver:  Ante,  sec.  564,  subd.  2. 
Waste:    Civ.    Code,    sec.    2929. 
Foreclosure   of   mortgage:    Ante,   sec.   726. 
Execution   sales:    Ante,   sees.   694   et   seq. 

§746.  Damages  may  he  recovered  for  injury  to  the  pos- 
sessitm    after     sale     and     before     delivery     of    possesion. 


SS  747-743  CONFLICTING   Cl^VlMS.  BH 

When  real  property  has  been  sold  on  execution,  the  pur- 
chaser thereof,  or  anj-  person  who  may  have  succeeded  to 
his  interest,  miiy,  after  his  estate  becomes  absohite,  recover 
damages  for  injury  to  the  property  by  the  tenant  In  pus- 
session  after  sale  ?nd  before  possession  is  delivered  under 
tho  conveyance.    En.  March  11,  1872. 

Prac.  Act,  sec  262.    En.  April  29,  1851. 

Lds  pendens:     Ante,  sec.  409. 

§  747.  Action  not  to  be  prejudiced  by  alienation,  pend- 
ing suit.  An  action  for  the  recovery  of  real  property 
agninst  a  person  in  possession  cannot  be  prejudicetl  by  any 
alienation  made  by  such  person,  either  before  or  after  the 
commencement  of  the  action.     En.  March  11,  1872. 

Prac.  Act,  sec.  263.    En,  April  29,  1851. 

Cal.  Rep.  Cit.  71,  476. 

§  748.  {Mining  claims,  actions  concerning  to  be  governed 
by  local  rules.  In  actions  respecting  mining  claims,  proof 
must  be  admitted  of  the  customs,  usages,  or  regulations 
established  and  in  force  at  the  bar  or  diggings  embracing 
such  claim;  and  such  customs,  usages,  or  regulations,  when 
not  in  conflict  with  the  laws  of  this  state,  must  govern  the 
decision  of  the  action.     En.  March  11,  1872. 

Prac.  Act,  sec.  621.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  5,  100;  26,  272;  26,  533;  31,  393;  69,  383. 

§  749.  How  service  may  be  made  in  action  relating  to 
real  property.  Service  may  be  made  by  publication  in 
actions  relating  to  or  the  subject  of  which  is  real  property 
In  this  state,  when  any  defendant  has  or  claims  any  adverse 
interest  or  estate  therein,  and  where  the  person  on  whom 
the  service  is  to  be  made  resides  outside  of  the  state,  or 
cannot,  after  due  diligence,  be  found  within  the  state,  or 
conceals  himself  to  avoid  the  service  of  summons,  or  Is  a 
foreign  corporation  having  no  managing  or  business  agent, 
cashier,  or  secretary  within  the  state,  and  the  fact  appear- 
ing, by  affidavit,  to  the  satisfaction  of  the  court  or  judge 
thereof,  and  it  also  appearing  by  such  afHdavit  or  by  the 
verified  complaint  on  file  that  a  cause  of  action  exists 
against  the  defendant  in  respect  to  whom  the  service  is  to 
be  made,  or  that  he  is  a  necessary  or  proper  party  to  the 
action,  such  judge  may  make  an  order  that  the  service 


193  CONFLICTING    CLAIMa  §  749 

be  made  by  publication  of  summons.  Service  by  pub- 
lication and  proof  of  service  of  a  copy  of  the  summons  and 
complaint  in  actions  under  this  title  shall  be  sufficient,  if 
made  in  accordance  with  sections  four  hundred  and  thirteen 
and  four  hundred  and  fifteen  of  this  code.  En.  Stats, 
1891,  278. 

This  section  was  not  superseded  by  the  next  section  749, 
adopted  in  1901  and  amended  in  1903  under  the  principle 
of  Ex  parte  Ruffin,  119  Cal.  487. 


§  749.  Determination  of  adverse  claim  of  known  and 
unknown  owner.  An  action  may  be  brought  to  determine 
the  adverse  claims  to  and  clouds  upon  title  to  real  property 
by  a  person  who,  by  himself  or  by  himself  and  his  prede- 
cessors in  interest,  has  been  In  the  actual,  exclusive  and 
adverse  possession  ot  such  property  continuously  for  twenty 
years  prior  to  the  filing  of  the  complaint,  claiming  to 
own  the  same  In  fee  against  the  whole  world,  and  who  has 
paid  all  taxes  of  every  kind  levied  or  assessed  against  the 
property  during  the  period  of  five  years  continuously  next 
preceding  the  filing  of  the  complaint.  Said  action  shall 
be  commenced  by  the  filing  of  a  verified  complaint  averring 
the  matters  above  enumerated.  The  said  complaint  may 
include  as  defendants  in  such  action.  In  addition  to  such 
persons  as  appear  of  record  to  have,  all  other  persons  who 
are  known  to  the  plaintiff  to  have,  some  claim  or  cloud  on 
the  lands  described  in  the  complaint  adverse  to  plaintiff's 
ownership,  or  other  persons  unknown  claiming  any  right, 
interest  or  lien  in  such  lands,  or  cloud  upon  the  title  of 
plaintiff  thereto,  and  the  plaintiff  may  describe  such  un- 
known defendants  in  the  complaint  as  follows:  "also  all 
other  persons  unknown,  claiming  any  right,  title,  estate, 
lien  or  interest  in  the  real  property  described  in  the  com- 
plaint adverse  to  plaintiff's  ownership,  or  any  cloud  upon 
plaintiff's  title  thereto."  Within  ten  days  after  the  filing 
of  the  complaint,  plaintiff  shall  file,  or  cause  to  be  filed, 
in  the  office  of  the  county  recorder  of  the  county  where 
the  property  is  situated,  a  notice  of  the  pendency  of  the 
action,  containing  the  matters  required  by  section  four 
hundred  and  nine  of  this  code.  En.  Stats.  1900-01,  579. 
Am'd.  1903,  104. 

Cal.  Rep.  Cit.  115,  276. 

See  sea  412,  anta 


§  730  CONFLICTING    CLAIMS.  XM 

§  750.  Notice  to  unknown  owners,  how  served.  Within 
oiiG  year  after  the  filing  of  the  complaint,  as  required  by 
the  preceding  section,  a  summons  must  be  issued,  which 
shall  contain  the  matters  required  by  section  four  hundred 
and  seven  of  this  code,  and  in  addition  a  description  of  the 
property  and  a  statement  of  the  object  of  the  action.  In 
said  summons  the  said  unknown  defendants  shall  be  desig- 
nated as  in  the  complaint.  Within  thirty  days  after  the 
issuance  of  the  summons,  the  plaintiff  shall  post  or  cause 
to  be  posted  a  copy  thereof  in  a  conspicuous  place  on  the 
property.  All  defendants  residing  in  the  state  of  Califor- 
nia, whose  place  of  residence  is  known  to  the  plaintiff 
shall  be  served  personally.  After  service  on  all  such 
defendants  has  been  made,  the  plaintiff,  or  his  agent,  or 
attorney,  shall  make  and  file  an  affidavit  wherein  there 
shall  be  stated  the  names  of  the  defendants  who  have  been 
served  personally,  the  names  of  the  defendants  who  reside 
out  of  the  state  and  their  places  of  residence,  if  known 
to  the  plaintiff,  and  the  names  of  the  defendants  residing 
in  or  out  of  the  state  whose  place  of  residence  is  unknown 
to  the  plaintiff,  and  thereupon  the  court  or  a  judge  thereof 
shall  make  an  order  directing  the  said  summons  to  be 
served  upon  the  defendants  residing  out  of  the  state,  whose 
place  of  residence  is  known  to  the  plaintiff  and  upon  the 
defendants  residing  in  or  out  of  the  state,  whose  place  of 
residence  Is  unknown  to  the  plantiff,  and  upon  all  the 
unknown  defendants  as  stated  in  the  complaint  and  sum- 
mons, by  publication  in  some  newspaper  of  general  circu- 
lation printed  and  published  in  the  county  where  the 
property  is  situated,  and  if  there  be  no  such  paper  in  such 
county,  then  in  some  adjoining  county,  to  be  designated  by 
the  court  or  judge  thereof,  which  publication  shall  be  for 
once  a  week  for  two  successive  months.  A  copy  of  the 
summons  and  complaint,  within  ten  days  after  the  making 
of  said  order,  properly  addressed  and  with  the  postage 
thereon  fully  prepaid,  shall  be  mailed  to  each  of  the 
defendants  who  reside  out  of  the  state,  at  their  place  of 
residence,  if  known,  and  also  to  the  defendants  residing 
In  or  out  of  the  state  whose  place  of  residence  is  unknown 
to  plaintiff,  addressed  to  them  at  the  county  seat  of  the 
county  where  the  action  is  commenced.  All  such  unknown 
persons  so  served  shall  have  the  same  rights  as  are  pro- 
vided by  law  in  cases  of  all  other  defendants  named,  upon 
whom  service  Is  made  by  publication,  or  personally,  and  the 
action  shall  proceed  against  such  unknown  persons  in  the 
same  manner  as  against  the  defendants  who  are  named 


297  CONFLICTING    CX,AIM3.  9  ^'l 

upon  whom  service  is  made  by  publication  or  personally 
and  with  like  effect;  and  any  such  unknown  person  who 
has  or  claims  to  have  any  right,  title,  estate,  lien  or  inter- 
est in  the  said  property,  or  cloud  on  the  title  thereto, 
adverse  to  plaintiff,  at  the  time  of  the  commencement  of 
the  action,  who  has  been  duly  served  as  aforesaid,  and 
anyone  claiming  under  him,  shall  be  concluded  by  thfl 
judgment  in  such  action  as  effectually  as  if  the  action  was 
brought  against  the  said  person  by  his  or  her  name  and 
personal  service  of  process  was  obtained,  notwithstanding 
any  such  unknown  person  may  be  under  legal  disability. 
Service  shall  be  deemed  complete  upon  the  completion  of 
the  publication.    En.  Stats.  1900-01,  579.    Am'd.  1903.  104. 


§  751.  Judgment  to  be  In  accordance  with  evidence. 
WTien  the  summons  has  been  served  as  provided  in  the 
preceding  section  and  the  time  for  answering  has  expired, 
the  court  shE.ll  proceed  to  hear  the  case  as  In  other  cases 
and  shall  have  Jurisdiction  to  examine  Into  and  determine 
the  legality  of  plaintiff's  title  and  of  the  title  and  claim 
of  all  the  defendants  and  of  all  unknown  persons,  and  to 
that  end  must  not  enter  any  Judgment  by  default,  but  must 
In  all  cases  require  evidence  of  plaintiff's  title  and  pos- 
session and  hear  su<;h  evidence  as  may  be  offered  respect- 
ing the  claims  and  title  of  any  of  the  dsfendants  and  must 
thereafter  direct  Judgment  to  be  entered  in  accordance 
with  the  evidence  and  the  law.  The  court  before  proceed- 
ing to  hear  the  case  must  require  proof  to  be  made  that 
the  summons  has  been  served  and  posted  aia  hereinbefore 
directed  and  that  the  required  notice  of  pendency  of  action 
has  been  filed.  The  Judgment  after  it  has  become  final  Is 
conclusive  against  all  the  persons  named  In  the  summons 
and  complaint  who  have  been  served  and  against  all  un- 
known persons  as  stated  In  the  complaint  and  summons 
who  have  been  served  by  publication,  but  shall  not  be 
conclusive  against  the  state  of  California  or  the  United 
States.  Said  Judgment  shall  have  the  effect  of  a  Judgment 
in  rem  except  as  against  the  state  of  California  and  the 
United  States;  and  provided  further,  that  the  said  Judg- 
ment shall  not  bind  or  be  conclusive  against  any  person 
claiming  any  estate,  title,  right,  possession  or  lien  to  the 
property  under  the  plaintiff  or  his  predecessors  In  Interest, 
which  claim,  Hen,  estate  or  right  ol  possession  has  arisen 
or  been  created  by  the  plaintiff  or  his  predecessors  in 
interest  within  twenty  years  prior  to  the  filing  of  the  com- 


PARTITION    or    RKAL    rUOfi:ilTT.  t9» 

plaint.  The  remedy  provirled  in  this  and  the  tvo  preceding 
sections  shall  te  construed  as  cumulative  and  not  ex- 
clusive of  any  other  remedy,  form  or  right  of  r.ction  or 
proceeding  now  allowed  by  law.  En.  Stats.  1900-01.  579. 
Ani'd.  1903,  106. 

r>eorops  affecting  realty  to  be  recorded:     See  Pol.  Code, 
sec.  4238. 


CH/PTER  IV. 

ACTIONS    FOR    THE    PARTITION    OF    REAL,    PROPERTY. 

!752.    Who  may   bring  actions  for  partition. 
763.     Intorcsva   of  all   parties   must   be  set   forth    In   tho   complaint. 
7r>4.    Llenholders  not  of  record  need  r.ot  be  made  parties. 
7ri3.     Plaintiff   must   flle   notice   of   lis   pendens. 
g  756.    Summons  must  be  directed  to  all  persona  tntcicsted  in  the  prop- 
erty. 
§  757.    Unknown   rartlei  may   be   served   by  publlcntlon. 
§  758.     Answer   of   defendants,    vhat    to   contain. 

g  759.     The  rights  of  all   r*' ties  may   be  ascertained   In   the   action. 
{  760.     Partial    paitltlcn. 
S  761.     Llenholders    muct   be   made   parties,    or   a   referee   be  appointed   to 

ascertEln   their   rljTiti. 
g  782.    Llenholders    must    bs    notified    to    appear   before    the    referee    ap- 
pointed. 
g  763.    The   court    may   order   a  sale   or  partition,    an\i   a:ipolnt   referees 

therefor 
g  764.    Partition    must  be   made  according  to   the   rights  of   the   parties, 
as  determined   by   the  court. 

J  765.    Referees   must   make  a   report   of   their  proceedings. 
766.    The   court   may   set   aside   or  affirm   report,    and   enter   Judgment 
thereon.    Upon  whom  Judgment  to  be  conclusive. 

g  767.    Judgment   not    to    affect    tenants   for   years    to    the    whole    prop- 
erty. 

5  768.    Expenses  of  partition  must  be  apportioned   among  the  parties. 

g  769.    A   lien   on   on   undivided   Interest   of  any   party  Is  a  charge   only 
on   the   share  asslgnevi   to   such   party. 

g  770.    Estate   for  life   or  years  may  be  set  off   In  a  part  of   the  prop- 
erty   not   sold,    when  not   all   sold. 

§  771.     Application  of  proceeds  of  sale  of  encumbered  property. 

g  772.     Party    holding    other    securities    may    be    required     first    to     ex- 
haust  them. 

g  773.    Proceeds   of   sale,    disposition   of. 

g  774.    When    paid    Into    court,    the    cause    may    be    continued    for    the 
determination    of    the   claims   of   the   parties. 

g  775.     Sales  by   referees   must   be  at   public  auction. 

8  770.     The   court    must   direct   the   terms   of   sale   or   credit. 

g  777.     Referees    may    take    securities    for    purchase    money. 

§  77S.     Tenants   whose   estate   has   been   sold   shall    receive   compensation. 

g  779.     The    court    may    fix    such    compensation. 

g  7S0.    The    court   must   protect   tenants   unknown. 


299  PARTITION  OP   REAL   PROPERTY.  J  752 

§  781.  The  court  must  ascertain  a.n\i  secure  the  value  of  future  con- 
tingent  or   vested   Interests. 

J  782.  Terms  of  sale  must  be  made  known  at  the  time.  Lots  must 
be    sold    spparately. 

8  783.    Who   may    not   be   purchasers. 

5  7K4.     Referee    must   make   a   report   of   the   sale   to   the   court. 

§  785.     If   confirmed,    conveyances   may  be   executed. 

§  786.    Proceeding  if  a  lUnholder  become  a  purchaser. 

5  787.    Conveyance  must  be  recorded,  and  will  be  a  bar  against  partl«is. 

j  788.  Proceeds  of  sale  belonging  to  parties  unknown  must  be  In- 
vested  for  their  benefits 

§  789.  Investment  must  be  made  in  the  name  of  the  clerk  of  the 
county. 

§  700.  When  the  Interests  of  the  parties  are  ascertained,  securities 
must  be  taken  In   their  names. 

g  791.     Duties   of   the   cleik    making   Investments. 

§  792.  When  unequal  partition  Is  ordered,  compensation  may  be  ad- 
judged   In    certain    cases. 

§  7f»3.    The  share  of  an  Infant  may  be  paid  to  hie  g^iardlan. 

§  7S4.  The  guardian  of  an  Insane  person  may  receive  the  proceeds  ol 
such    party's   Interest. 

{  795.  A  guardian  may  consent  to  partition  without  action,  and  exe- 
cute  releases. 

5  7D6.     Costs  of  partition  a  Men  upon   shares  of  parceners. 

J  797.    The   court,    by   consent,    may   appoint   a   single   refereee. 

5  7S8.     Expenses    of   previous    litigation    for   common    benrflt   allowed. 

5  7;i9.    Abstract  of  title  in  action   for  partition— When  cost  of  allowed. 

5  SCO.    Abstract,   how  made  and   verified. 

§  801.  Interest  allowed  on  disbursements  made  und'sr  direction  of  the 
court. 

GfeTi.  Cit.  to  Chap.— Cal.  Rep.  Clt.  64,  829;   91,  410. 

§  752.  Who  may  bring  actions  for  partition.  When 
several  cotenants  hold  anrl  are  in  possesyiou  of  real  prop- 
erty as  parceners,  joint  tenants,  or  tenants  in  common,  in 
which  one  or  more  of  them  have  an  estate  of  inheritance, 
or  for  life  or  lives,  or  for  years,  an  action  may  be  brought 
by  one  or  more  of  such  persons  for  a  partition  thereof 
according  to  the  respective  rights  of  the  persons  interested 
therein,  and  for  a  sale  of  such  property,  or  a  part  thereof, 
if  it  appear  that  a  partition  cannot  be  made  without  great 
prejudice  to  the  owners.     En.  March  11,   1872. 

Cal.  Rep.  Cit.  53,  25;  58,  592;  64,  614;  65,  47;  84,  418; 
86,  526;  86,  530;  106,  686;  126,  483;  141,  385;  144,  29; 
145,  164. 

Prac.  Act,  sec.  264.  En.  April  29,  1851.  Am'd.  1854,  63; 
1866,  704. 

Cal.  Rep.  Cit.  26,  78;  27,  331;  35,  586. 

Partition  of  dominant  tenements,  easements:  Civ.  Code, 
sec.  807. 

Intervention:  Ante,  sec.  387. 


S§  753-755  PARTITION    OF    REAL    TROPERTY.  100 

§  753.  Interests  of  all  parties  must  be  set  forth  In  th© 
complaint.  The  Interests  of. all  persons  In  the  property, 
whether  such  persons  be  known  or  unknown,  must  be  set 
forth  In  the  complaint  specifically  and  particularly,  as  far 
as  known  to  the  plaintiff;  and  if  one  or  more  of  the  parties, 
or  the  share  or  quantity  of  interest  of  any  of  the  parties, 
be  unknown  to  the  plaintiff,  or  be  uncertain  or  contingent, 
Or  the  ownership  of  the  Inheritance  depend  upon  an  execu- 
tory devise,  or  the  remainder  be  a  contingent  remainder. 
BO  th:t  such  parties  cannot  be  named,  that  fact  must  be 
Bet  forth  In  the  complaint.     En.  March  11,  1872. 

Oal.  Rep.  Clt.  48,  394;  64,  614;  130,  501;  137,  426;  139.  172; 
144,  29. 

Prac.  Act,  sec.  265.    En.  April  29,  1851. 

Cal.  Rep.  Clt.  27,  331;  27,  336;   32,  294;   82,  295. 

Complaint  In  partition — Complaint  generally:  Ante,  sec. 
426;  parties:     Post,  sec.  754;  ante,  sees.  384,  387, 

Unknown  persons,  use  of  fictitious  names:  Ante,  sec. 
474;  and  as  to  summons:     Post,  sec.  756. 

Abstract  of  title — Procured  before  suit:   Post,  sec.  799. 

§  754.  Llenholders  not  of  record  need  not  be  made 
parties.  No  person  having  a  conveyance  of  or  claiming  a 
lien  on  the  property,  or  some  part  of  it,  need  be  made  a 
party  to  the  action  unless  such  conveyance  or  Hen  appear 
of  record.    Eji.  March  11,  1872. 

Cal.  Rep.  Clt.  53,  39. 

Prac.  Act,  sec.  266.    En.  April  29,  1851.     Am'd.  1866,  704. 

g  755.  Plaintiff  must  file  notice  of  lis  pendens.  Imme- 
diately after  filing  the  complaint  in  the  superior  court,  the 
plaintiff  must  record  In  the  office  of  the  recorder  of  the 
county  or  of  the  several  counties  in  which  the  property  is 
situated,  a  notice  of  the  pendency  of  the  action,  containing 
the  names  of  the  parties  so  far  as  known,  the  object  of  the 
action,  and  a  description  of  the  property  to  be  affected 
thereby.  From  the  time  of  filing  such  notice  for  record,  all 
persons  shall  be  deemed  to  have  notice  of  the  pendency  of 
the  action.  En.  March  11,  1872.  >  Am'd.  1873-4.  825;  1880, 
11. 

Cal.  Rep.  Clt.  106,  688. 

Prac.  Act,  sec.  267.    En.  April  29,  1851.     Am'd.  1866,  705. 

Lis  pendens:     Sec.  409. 


Wl  PARTITION    OF    REAL   PROPERTY.  §§  756-758 

§  756.  Summons  must  be  directed  to  all  persons  inter- 
ested in  the  property.  The  summmons  must  be  directed  to 
all  the  joint  tenants  and  tenants  in  common,  and  all  persons 
having  any  interest  m,  or  any  liens  of  record  by  mortgage, 
judgment,  or  otherwise,  upon  the  property,  or  upon  any 
particular  portion  thereof;  and  generally,  to  all  persons 
unknown  who  have  or  claim  any  interest  in  the  property. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.  53,  371;   58,  594. 

Prac.  Act,  sec.  268.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  35,  592. 

Summons  In  partition,  generally:  Ante,  sees.  405-416; 
and  as  to  contents:  See  ante,  sec.  407. 

8  757.  Unknown  parties  may  be  served  by  publication. 
If  a  partion  having  a  share  or  interest  is  unknown,  or  any 
one  of  the  known  parties  reside  out  of  the  state,  or  cannot 
be  found  therein,  and  such  fact  is  made  to  appear  by  affi- 
davit, the  summons  may  be  served  on  such  absent  or 
unknown  party  by  publication,  as  in  other  cases.  When 
pr.blication  is  made,  the  summons,  as  published,  must  be 
accompanied  by  a  brief  description  cif  the  property  which 
is  the  subject  of  the  action.    En.  March  11,  1872. 

Prac.  Act,  sec.  269.    En.  April  29,  1851. 

Service  by  publication:    Ante,  sees.  412,  413. 

§  758.  Answer  of  defendants,  what  to  contain.  The 
defendants  who  have  been  personally  served  with  the 
summons  and  a  copy  of  the  complaint,  or  who  have  ap- 
peared without  such  service,  must  set  forth  in  their 
answers,  fully  and  particularly,  the  origin,  nature,  and 
extent  of  their  respective  interests  in  the  property;  and 
if  such  defendants  claim  a  lien  on  the  property  by  mort- 
gage, judgment,  or  otherwise,  they  must  state  the  original 
amount  and  date  of  the  same,  and  the  sum  remaining  due 
thereon;  also  whether  the  same  has  been  secured  in  any 
other  way  or  not;  and,  if  secured,  the  nature  and  extent 
of  such  security,  or  they  are  deemed  to  have  waived  their 
right  to  such  lien.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  53,  371;  58,  595;  117,  675;  144,  761. 


J 5  "J-'X  ■?"  rAIlTITION    OP    KKAL    PROPRRTT.  *» 

Prar.  Art,  see.  270.     En.  April  29,  1851.     Am'd.  1SC6,  705. 

Cal.  Rep.  Cit.  1,  199;   32,  295. 

Answer  In  partition — Pleading  disbursements:    Post,  sec. 
798;   answer  geiieially:     Ante,  sec.  437. 
Notice,  as  to  abstract  of  title:   Post,  sec.  799. 

§  759.  The  rights  of  all  parties  may  be  ascertained  in 
the  action.  The  rights  of  the  several  parties,  plaintiff  as 
well  as  defendant,  may  be  put  in  issue,  tried,  and  deter- 
mined in  such  action;  and  when  a  sale  of  the  premises  is 
necessary,  the  title  must  be  ascertained  by  proof  to  the 
satisfaction  of  the  court,  before  the  judgment  of  sale  can  be 
made;  and  where  service  of  the  complaint  has  been  made 
by  publication,  like  proof  must  be  required  of  the  right  of 
tho  absent  or  unknown  parties,  before  such  judgment  is 
rendered;  except  that  where  there  are  several  unknown 
persons  having  an  interest  in  the  property,  their  rights  may 
be  con.=^idered  together  in  the  action,  and  not  as  between 
themselves.    En.  March  11,  1872. 

Cal.  Rep.  Clt.  58,  593;   64,  609;   64,  612;   64,  614;   64,  618; 
64,  629;   116,  433;   144,  29;   144,  761. 

Prac.  Act,  sec.  271.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  1,  183;  2,  161;  27,  335;  32,  294;   58,  593. 

Final  judgment:     Post,  sec.  766. 

Parties:     Ante,  sees.  381,  384;  post,  sec.  761. 

Intervention:     Ante,  sec.  387. 

§  760-  Partial  partition.  Whenever  from  any  cause  It 
Is,  in  the  opinion  of  the  court,  impracticable  or  highly  in- 
convenient to  make  a  complete  partition,  in  the  first 
instance,  among  all  the  parties  in  interest,  the  court  may 
first  ascertain  and  determine  the  shares  or  interest  re- 
spectively held  by  the  original  cotenants,  and  thereupon 
aojudge  and  cause  a  partition  to  be  made,  as  if  such 
original  cotenants  were  the  parties  and  sole  parties  in 
Interest,  and  the  only  parties  to  the  action,  and  thereafter 
may  proceed  in  like  manner  to  adjudge  and  make  partition 
separately  of  each  share  or  portion  so  ascertained  and 
allotted,  as  between  those  claiming  under  the  original 
tenant  to  whom  the  same  shall  have  beon  so  set  apart,  or 
may  allow  them  to  remain  tenants  in  common  thereof,  as 
they  may  desire.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  64,  609;   64,  610;   64,  612;   64,  627;   64,  630; 
64,  631;  64,  632;  80,  497;  90,  482. 


805  PARTITION  OF  REAL  PROPERTY.  $§  7hl.  7S2 

Prac.   Act,   sec.   272.    En.   April  29,  185L    B«p.  1852,  88. 

En.  1866,  ?05. 

Cal.  R2p.  Cit.  1,  182;  36,  115. 

§  761.  Lienholders  must  be  made  parties,  or  a  rcVbfve 
be  appointed  to  ascertain  their  rights.  If  it  appears  to 
the  court,  by  the  certificate  of  the  county  recor'^er  or 
county  clerk,  or  by  the  sworn  or  verified  statement  of  any 
person  who  may  have  examined  or  searched  the  records, 
that  there  are  outstanding  liens  or  encumbrances  of  record 
upon  such  real  property,  or  any  part  or  portion  thereof, 
which  existed  and  were  of  record  at  the  time  of  the  cora- 
mencement  of  the  action,  and  the  persons  holding  such 
liens  are  not  made  parties  to  the  action,  the  court  must 
either  order  such  persons  to  be  made  parties  to  the  action, 
by  an  amendment  or  supplemental  complaint,  or  appoint  a 
referee  to  ascertain  whether  or  not  such  lien  or  encuT.^- 
brances  have  been  paid,  or  if  not  paid,  what  amount 
remains  due  thereon,  and  their  order  among  the  liens  ur 
encumbrances  severally  held  by  such  persons  and  the 
parties  to  the  action,  and  whether  the  amount  remaiuiug 
due  thereon  has  been  secured  in  any  manner,  and  If  se- 
cured, the  nature  and  extent  of  the  security.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.  64,  612;  79,  443;  80,  500. 

Prac.  Act,  sec.  273.     En.  April  29,  1851.     Am'd.  1862,  88. 

Cal.  Rep.  Cit.  80,  497. 

§  762.  Lienholders  must  be  notified  to  appear  before 
the  referee  appointed.  The  plaintiff  must  cause  a  notice  to 
be  served,  a  reasonable  time  previous  to  the  day  for  appear- 
ance before  the  referee  appointed  as  provided  in  the  last 
section,  on  each  person  having  outstanding  liens  of  record, 
who  is  not  a  party  to  the  action,  to  appear  before  the 
referee  at  a  specified  time  and  place,  to  make  proof,  by  his 
own  afiadavit  or  otherwise,  of  the  amount  due  or  to  become 
due  contingently  or  absolutely  thereon.  In  case  such 
person  be  absent,  or  his  residence  be  unknown,  service 
may  be  made  by  publication,  or  notice  to  his  agents,  under 
the  direction  of  the  court,  in  such  manner  as  may  be  proper. 
The  report  of  the  referee  thereon  must  be  made  to  the 
court,  and  must  be  confirmed,  modified,  or  set  aside,  and 
a  new  reference  ordered,  as  the  justice  of  the  case  may 
require.    En.  March  11,  1872. 


5  763  PAKTITION   OF    UKM,    l-KorKlM'Y. 

Cal.  Rep.  Clt.  64,  612;  80,  500. 

Prac.  Act.  sec.  274.     En.  April  29,  1851. 


§  763.  The  court  nriay  order  a  sale  or  partition,  attd 
appoint  referees  therefor.  If  it  be  alleged  In  the  com- 
plaint and  established  by  evidence,  or  if  It  appear  by  the 
evidence  without  such  allegation  In  the  complaint  to  ihe 
satisfaction  of  the  court,  that  the  property  or  any  part  of 
it  is  so  situated  that  partition  cannot  be  made  without 
great  prejudice  to  the  owners,  the  court  may  order  a  sale 
theracf,  otheiwise,  upon  the  requisite  proofs  being  made, 
it  must  ordtr  a  partition  aocc»ding  to  the  respective 
rights  of  the  parties  as  ascertainad  by  the  court,  and  ap- 
point three  referees  therefor,  and  must  desigo^o-te  the  jK>r- 
tlon  to  rema'n  undivided  for  the  owners  whose  interests 
ren-Qin  unknown,  or  are  not  ascertained;  provided,  that 
Vihid  the  site  of  an  incorporate  city  or  town  is  included 
within  the  exterior  boundaries  of  the  property  to  be  par- 
tltio'Jicd,  then,  on  said  fact  being  established  by  evidence, 
the  following  proceedings  shall  be  had.  The  court  s>»all 
thereupon  direct  the  referees  to  survey  and  appraise  tha 
entire  property  to  be  partitioned  by  actual  lots  and  sub- 
divisions then  existing  in  the  actual  possession  of  the  sev- 
eral tenants  in  common,  exclusive  of  the  value  of  im- 
provements thereon,  first  setting  apart  necessary  portions 
of  the  property  for  ways,  roads,  and  streets,  as  jn  sec- 
tion seven  hundred  and  sixty-four  of  this  code  provided, 
and  to  report  sucli  survey  and  separate  appraisement  on 
each  lot  and  subdivision  to  the  court.  The  court  may 
confirm,  change,  modify,  or  set  aside  the  report  in  whole 
or  in  part,  and  if  necessary  appoint  new  referees.  When, 
after  the  final  confirmation  of  the  report  of  such  survey 
and  appraisement,  it  shall  appear  by  evidence  to  the  satis- 
faction of  the  court  that  an  equitable  partition  of  the 
whole  property  is  impracticable,  and  a  sale  of  the  site 
of  such  city  or  town,  or  any  portion  thereof,  will  be  for 
the  best  interests  of  the  owners  of  the  whole  property, 
it  shall  order  a  sale  thereof;  provided,  that  within  sixty 
days  thereafter  any  tenant  in  common,  or  tenants  in  com- 
mon, having  improvements  erected  on  any  town  or  city  lot 
or  subdivision  included  in  such  order  of  sale,  shall  have 
the  prior  right  to  purchase  the  same  at  such  appraised 
valuation,  and  may  pay  into  court  the  amount  so  ap- 
praised as  the  value  thereof,  and  upon  such  payment  the 


505  PARTITION   OF   REAL   PROPERTY.  i  ^''^ 

title  shall  vest  in  ^^^^^  ^^^''"^^'Z.^/Sa^Zl^eTl  ■ 
the  court  shall  cause  to  be  executed  by  said  reterees  a 
?etd  for  such  lot  or  subdivision  in  fee  and  m  severalty  to 
such  purchaser  or  purchasers,  such  further  proceedings 
Shan  then  be  had  as  to  the  remainder  of  the  property,  and 
Se  monev  so  paid  to  the  court,  as  by  this  chapter  provid- 
ed ^f  during  the  pendency  of  the  action,  any  of  the 
narties   die    o?  become  insane  or  otherwise  incompetent 

S=S:rHSS)£pSM 

1872      Am'd.  1880,  CO. 

-•.!,^%?.'.o?;  If;.^t  T.^  ^'-^'  -^-; 

130.  182;     137,  56. 
Prac.  Act,  sec.  275.     En.  April  29,  1851. 
•Sale,  proceedings  on:   Post,  sees.  770-795. 
Partition   of   the   dominant   tenement,   burden   must   be 
apportioned:   Civ.  Code,  sec.  807. 
Referees:  Post,  sec.  797. 
Modifying    decree:  Post.    sec.    766. 

R  7fi4  Partition  must  be  made  according  to  the  rights 
of  the  part^e  as  determined  by  the  court.  In  niakmg  par- 
minn  the  referees  must  divide  the  property,  and  a  lot 
the  several  portSns  thereof  to  the  respective  parties 
the   several   P"'^  relativelv  considered,  according  to 

?he  rJsDectlve^righ  s^of  the  parties  as  determined  by  the 
pn?.rt  rfursulnt  to  the  provisions  of  this  chapter,  designat- 
ing the  sevSllportioL   by   proper  landmarks,   and  may 

Code  Civil  Proc— 20. 


I  T64  PARTITTON   OF   REAL   PROPETRTT.  9» 

employ  a  surveyor  with  the  necessary  assistants  to  lid 
them.  Before  making  partition  or  sale,  the  referees  may, 
whenever  it  will  be  for  the  advantage  of  those  interested, 
set  apart  a  portion  of  the  property  for  a  way,  road,  or 
street,  and  the  portion  so  set  apart  shall  not  be  assigaed 
to  any  of  the  parties  or  a  Id,  but  shall  remain  an  open 
and  public  way,  road,  or  street,  unless  the  referees  shall 
set  the  same  apart  as  a  private  way  for  the  use  of  the 
parties  interested,  or  some  of  them,  their  heirs  and  as- 
signs, in  which  case  it  shall  remain  such  private  way. 
Whenever  the  referees  have  laid  out  on  any  tract  of  land 
roads  sufficient  in  the  judgment  of  said  referees  to  ac- 
commodate the  public  and  private  wants,  they  shall  re- 
port that  fact  to  the  court,  and  upon  the  confirmation  of 
their  report  all  other  roads  on  said  tract  shall  cease  to 
be  public  highways.  Whenever  it  shall  appear,  in  an  ac- 
tion for  partition  of  lands,  that  one  or  more  of  the  ten-, 
ants  in  commmon,  being  the  owner  of  an  undivided  in- 
terest in  the  tract  of  land  sought  to  be  partitioned,  has 
sold  to  another  person  a  specific  tract  by  metes  and 
bounds  out  of  the  common  land,  and  executed  to  the  pur- 
chaser a  deed  of  conveyance,  purporting  to  convey  the 
whole  title  to  such  specific  tract  to  the  purchaser  in  fee 
and  in  severalty,  the  land  described  in  such  deed  shall 
be  allotted  and  set  apart  in  partition  to  such  purchaser, 
his  heirs  or  assigns;  or  in  such  other  manner  as  shall 
make  such  deed  effectual  as  a  conveyance  of  the  whole 
title  to  such  segregated  parcel,  it  such  tract  or  tracts 
of  land  can  be  so  allotted  or  set  apart  without  material 
injury  of  the  rights  and  interests  of  the  other  cotenants 
who  may  not  have  joined  in  such  conveyance;  provided, 
that  in  all  cases  the  court  shall  direct  the  referees,  in 
making  partition  of  land,  to  allot  the  share  of  each  of 
the  parties  owning  an  interest  in  the  whole  or  in  any 
part  of  the  premises  sought  to  be  partitioned,  and  to  lo- 
cate the  share  of  each  cotenant,  so  as  to  embrace  as 
far  as  practicable  the  improvements  made  by  such  coten- 
ant upon  the  property;  and  the  value  of  the  improvements 
made  by  the  tenants  in  common  must  be  excluded  from 
the  valuation  in  making  allotments,  and  the  land  must  be 
valued  without  regard  to  such  Improvement,  in  case  the 
same  can  be  done  without  material  injury  to  the  rights 
and  interest  to  [ofl  the  other  tenants  in  common  owning 
such  land.  En.  March  11,  1872.  Am'd.  1873-4,  325;  1S7&«, 
96. 


30?  PARTITION    OF    REAL    PROPERTY.  §§  765,  7G6 

Cal.  Rep.  Cit.  64,  609;  64,  614;  64,  618;  65,  48;  80, 
501;  84,  5;  90,  453;  90,  454;  90,  455;  90,  456;  90, 
460;    90,  468;    90,  476;    101,  530;    108,  270. 

Prac.  Act,  sec.  276.     En.  April  29,  1851.    Am'd.  1866,  705. 

§  765.  Referees  must  make  a  report  of  their  proceed- 
ings. The  referees  must  make  a  report  of  their  proceed- 
ings, specifying  therein  the  manner  in  which  they  exe- 
cuted their  trust,  and  describing  the  property  divided,  and 
the  shares  allotted  to  each  party,  with  a  particular  de- 
scription of  each  share.     En.  March  11,  1872. 

Cal.  Rep.  CIt.  64,  615;    64,  629;    90,  455;    97,  27. 

Prac.  Act,  sec.  277.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  1,  333;  1,  334. 

§  766.  The  court  may  set  aside  or  affirm  report,  and 
enter  judgment  thereon.  Upon  whom  judgment  to  be  con- 
clusive. The  court  may  confirm,  change,  modify,  or  set 
aside  the  report,  and  if  necessary,  appoint  new  referees. 
Upon  the  report  being  confirmed,  judgment  must  be  ren- 
dered that  such  partition  be  effectual  forever,  which  judg- 
ment is  binding  and  conclusive: 

1.  On  all  persons  named  as  parties  to  the  action,  and 
their  legal  representatives,  who  have  at  the  time  any 
interest  in  the  property  divided,  or  any  part  thereof,  as 
owners  in  fee  or  as  tenants  for  life  or  for  years,  or  as 
entitled  to  the  reversion,  remainder,  or  the  inheritance" of 
such  property,  or  any  part  thereof,  after  the  determination 
of  a  particular  estate  therein,  and  who  by  any  contingency 
may  be  entitled  to  a  beneficial  interest  in  the  property,  or 
who  have  an  interest  in  any  undivided  share  thereof,  as 
tenants  for  years  or  for  life. 

2.  On  all  persons  interested  in  the  property,  who  may 
be  unknown  to  whom  notice  has  been  given  of  the  action 
for  partition  by  publication: 

3.  On  all  other  persons  claiming  from  such  parties  or 
persons,  or  either  of  them 

And  no  judgment  is  invalidated  by  reason  of  the  death 
of  any  party  before  final  judgment  or  decree;  but  such 
judgment  or  decree  Is  as  conclusive  against  the  heirs,  legal, 
representatives,  or  assigns  of  such  decedent,  as  if  it  had 
been  entered  before  his  death.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     58,  163;    64,  615;    80,  501;    84,  514;    97, 
27;    137,  59.     Subd.  1—144,  761. 


88  707-7C9  PARTITION    OF    REAL    PROPERTT.  KN 

Prac.  Act,  sec.  278.  En.  April  29,  1851.  Am'd.  18G6, 
705,   1867-8,   629. 

Cal.  Rep.  Cit.     32,  296;    35,  592. 

Decrees    partitioning    realty    to    be    recorded:     See   Pol. 
Code,  sec.  4238. 
Record  of  decree  as  notice:  See  Pol,  Code,  sec.  4239. 

§  767.  Judgment  not  to  affect  tenants  for  years  to  the 
whole  property.  The  judgment  does  not  afft'ct  tenants 
for  years  less  than  ten,  to  the  whole  of  the  property  which 
is  the  subject  of  the  partition.     En.   March  11,  1872. 

Prac.  Act,  sec.  279.     En.  April  29,  1851. 

Cal.  Rep.  Cit.    1,  97;  1,  177. 

§  768.  Expenses  of  partition  must  be  apportioned  among 
the  parties.  The  expenses  of  the  referees,  including  those 
of  a  surveyor  and  his  assistants,  when  employed,  must 
be  ascertained  and  allowed  by  the  court,  and  the  amount 
thereof,  together  with  the  fees  allowed  by  the  court,  in 
its  discretion,  to  the  referees,  must  be  apportioned  among 
the  different  parties  to  the  action,  equitably.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     140,  404;     140,  405. 

Prac.  Act,  sec.  280.  En.  April  29,  1851.  Am'd.  186C, 
706;     1871-2,  230. 

Cal.  Rep.  Cit.     1,  194;     81,  467;    140,  404;    140,  405. 

Section  280  of  the  old  Practice  Act,  which  came  to  be 
section  768  of  the  Code  of  Civil  Procedure,  was  amended 
during  the  session  of  1871-72,  and  amendments  of  that 
session  superseded  the  codes,  as  follows: 

The  expenses  of  the  referees,  including  those  of  a  sur- 
veyor ana  his  assistant  when  employed,  shall  be  ascer- 
tained and  allowed  by  the  court,  and  the  amount  thereof, 
together  with  the  fees  allowed  by  law  to  the  referees,  and 
such  attorney's  fees  expended  for  the  common  benefit, 
both  for  plainti^  and  defendants,  as  the  court  shall  deem 
Just  and  propar,  shall  be  apportioned  among  the  different 
parties  to  the  action. 

Fees  of  referees:   See  sec.  1028. 

§  769.  A  lien  on  an  undivided  interest  of  any  party  Is  a 
charge  only  on  the  share  assigned  to  such  party.  When 
a  lien  is  on  an  undivided  interest  or  estate  of  any  of  the 


309  PARTITION    OF    REAL    PROPERTY.  5§  770,  772 

parties,  such  lien,  If  a  partition  be  made,  shall  thence- 
forth be  a  charge  only  on  the  share  assigned  to  such 
party;  but  such  share  must  first  be  charged  with  its  just 
proportion  of  the  costs  of  the  partition,  in  preference  to 
such  lien.     En.  March  11,  1872. 

Prac.  Act,  sec.  281.    En.  A^rll  29,  1851. 

§  770.  Estate  for  life  or  years  may  be  set  off  In  a  part  of 
the  property  not  sold,  when  not  all  sold.  When  a  part  of 
the  property  only  Is  ordered  to  be  sold,  if  there  be  an  es- 
tate for  life  or  years,  in  an  undlvltled  share  of  the  whole 
property,  such  estate  may  be  set  off  in  any  part  of  the 
property  not  ordered  to  be  sold.    En.  March  11,  1872. 

Cal.   Rep.  Clt.     103,  454. 

Prac.  Act,  sec.  282.    En.  April  29,  1851. 

§  771.  Application  of  proceeds  of  sale  of  encumbered 
property.  The  proceeds  of  the  sale  of  encumbered  prop- 
erty must  be  applied  under  the  direction  of  the  court,  as 
follows: 

1.  To  pay  its  just  proportion  of  the  general  costs  of  the 
action; 

2.  To  pay  the  costs  of  the  reference; 

3.  To  satisfy  and  cancel  of  record  the  several  Hens  in 
their  order  of  priority,  by  payment  of  the  sums  due  and  to 
become  due;  the  amount  due  to  be  verified  by  affidavit  at 
the  time  of  payment; 

4.  The  residue  among  the  owners  of  the  property  soM, 
according  to  their  respective  shares  therein.  En.  March 
11,  1872. 

Prac.  Act,  sec.  283.    En.  April  29,  1851. 

§  772.  Party  holding  other  securities  may  be  required 
first  to  exhaust  them.  Whenever  any  party  to  an  action 
who  holds  a  lien  upon  the  property,  or  any  part  thereof, 
has  other  securities  for  the  payment  of  the  amount  of  such 
lien,  the  court  may,  in  its  discretion,  order  such  securltie3 
to  be  exhausted  before  a  distribution  of  the  proceeds  of 
sale,  or  may  order  a  just  deduction  to  be  made  from  the 
amount  of  the  Hen  on  the  property,  on  account  thereof. 
En.  March  11,  1872. 

Prac.  Act,  sec.  284.     En.  April  29,  1851. 


§§  773-776  PARTITIOK    OF    RKAL    PROPRRTY.  09 

§  773.  Proceeds  of  sale,  disposition  of.  The  procced.s  of 
sale  and  the  securities  taken  by  the  referees,  or  any  part 
thereof,  must  be  distrihiite<l  by  them  to  the  persons  en- 
titled thereto,  whenever  the  court  so  directs.  But  in  case 
r.o  direction  be  given,  all  of  such  proceeds  and  securities 
must  be  paid  into  court,  or  deposited  therein,  or  as  di- 
rected by  the  court.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     Ill,  214. 

Prac.  Act,  sec.  2S5.     En.  April  29,  1851. 

Deposit  in  court:   Ante,  sees.  572-574;  post,  sec.  2104. 

§  774.  When  paid  into  court,  the  cause  may  be  contin- 
ued for  the  determination  of  the  claims  of  the  parties. 
When  the  proceeds  of  the  sale  of  any  sliare  or  parcel  be- 
longing to  persons  who  are  parties  to  the  action,  and  who 
are  known,  are  paid  into  court,  the  action  may  be  con- 
tinued as  between  such  parties,  for  the  determination  of 
their  respective  claims  thereto,  which  must  be  ascertained 
and  adjudged  by  the  court.  Further  testimony  may  be 
taken  in  court,  or  by  a  referee,  at  the  discretion  of  the 
court,  anti  the  court  may,  if  necessary,  require  such  parties 
to  present  the  facts  or  law  in  controversy,  by  pleadings, 
as  in  an  original  action.     En.  March  11,  1872. 

Cal.  Rep.  Cit.    116,  433. 

Prac.  Act,  sec.  286.    En.  April  29,  1851. 

§  775.  Sales  by  referees  must  be  at  public  auction.  All 
sales  of  real  property,  made  by  referees  under  this  chap- 
ter, must  be  made  at  public  auction  to  the  highest  bidder, 
upon  notice  published  in  the  manner  required  for  the  sale 
of  real  property  on  execution.  The  notice  must  state  the 
terms  of  sale,  and  if  the  property  or  any  part  of  it  is  to 
be  sold  subject  to  a  prior  estate,  charge,  or  lien,  that  must 
be  stated  in  the  notice.    En.  March  11,  1872. 

Prac.  Act,  sec.  287.     En.  March  29,  1851. 

Terms,  distinct  lots:    Post,   sec.  782. 

Notice  of  execution  sales:  Ante,  sees.  692,  693;  proceed- 
ings:   Ante,  sees.  694  et  seq. 

§  '76.  The  court  must  direct  the  terms  of  sale  or  credit. 
The  court  must,  in  the  order  for  sale,  direct  the  terms  of 
credit  which  may   be  allowed  for   the  purchase   money  of 


811  PARTITION    OF    REAL    PROPERTY,  §§  777-779 

any  portion  of  the  premises  of  which  it  may  direct  a  sale 
on  credit,  and  for  that  portion  of  which  the  purchase 
money  is  required,  by  the  provisions  hereinafter  con- 
tained, to  be  invested  for  the  benefit  of  unknown  owners, 
infants,  or  parties  out  of  the  state.    En.  March  11,  1872. 

Cal.  Rep.  Cit.    119,  71. 

Prac.  Act,  sec.  288.    En.  April  29,  1851. 

§  777c  Referees  may  take  securities  for  purchase 
money.  The  referees  may  take  separate  mortgages  and 
other  securities  for  the  whole,  or  convenient  portions  of 
the  purchase  money,  of  such  parts  of  the  property  as  are 
directed  by  the  court  to  be  sold  on  credit,  for  the  shares 
of  any  known  owner  of  full  age,  in  the  name  of  such 
owner;  and  for  the  shares  of  an  infant,  in  the  name  of 
the  guardian  of  such  infant;  and  for  other  shares,  in  the 
name  of  the  clerk  of  the  county  and  his  successors  in 
office.     En.   March  11,  1872. 

Prac.  Act,  sec.  289.     En.  April  29,  1851.     Am'd.  1854,  64. 

Cal.  Rep.  Cit.     27,  401. 

§  778.  Tenants  whose  estate  has  been  sold  shall  re- 
ceive compensation.  The  person  entitled  to  a  tenancy  for 
life,  or  years,  whose  estate  has  been  sold,  is  entitled  to 
receive  such,  sum  as  may  be  deemed  a  reasonable  satisfac- 
tion for  such  estate,  and  which  the  person  so  entitled 
may  consent  to  accept  instead  thereof,  by  an  instrument 
in  writing,  filed  with  the  clerk  of  the  court.  Upon  the 
filing  of  such  consent,  the  clerk  must  enter  the  same  in 
the  minutes  of  the  court.    En.  March  11,  1872. 

Prac.  Act,  sec.  290.     En.  April  29,  1851. 

§  779.     The   court  may  fix  such  compensation.     If  such 

consent  be  not  given,  filed,  and  entered,  as  provided  in  the 
last  section,  at  or  before  a  judgment  of  sale  is  rendered, 
the  court  must  ascertain  and  determine  what  proportion 
of  the  proceeds  of  the  sale,  after  deducting  expenses,  will 
be  a  just  and  reasonable  sum  to  be  allowed  on  account  of 
such  estate,  and  must  order  the  same  to  be  paid  to  such 
party,  or  deposit  in  court  for  hijn,  as  the  case  may  re- 
quire.   En.  March  11,  1872. 

Prac.  Act,  sec.  291,    En.  April  29,  1851- 


§§  7S0-7S4  PARTITION    OF    IIK.W    PUOPKIITT.  «! 

§  780.  The  court  must  protect  tenants  unknown.  If  the 
persons  entitled  to  such  estate  for  life  or  years  be  un- 
known, the  court  must  provide  for  the  protection  of  their 
rights,  in  the  same  manner,  as  far  as  may  be,  as  if  Ihey 
were  known  and  had  appeared.     En.  March  11,  1872. 

Prac.  Act,  sec.   292.     En.  April  29,  1851. 

§  781.  The  court  must  ascertain  and  secure  the  value  of 
future,  contingent  or  vested  interests.  In  all  cases  of 
sales,  when  it  appears  that  any  person  has  a  vested  or 
continpent  future  right  or  estate  in  any  of  the  property 
sold,  the  court  must  ascertain  and  settle  the  proportional 
value  of  such  contingent  or  vested  right  or  estate,  and 
must  direct  such  proportion  of  the  proceeds  of  the  sale  to 
be  invested,  secured,  or  paid  over,  in  such  manner  as  to 
protect  the  rights  and  interests  of  the  parties.  En.  March 
11,   1872. 

Prac.  Act,  sec.  293.     En.  April  29,  1851. 

Cal.  Rep.  Cit.    35,  592. 

§  782.  Terms  of  sale  must  be  made  known  at  the  time. 
Lots  must  be  sold  separately.  In  all  cases  of  sales  of 
property  the  terms  must  he  made  known  at  the  time;  and 
if  the  premises  consist  of  distinct  farms  or  lots,  they  must 
be  sold  separately.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     66,  121. 

Prac.  Act,  sec.  294.     En.  April  29,  1851. 

§  783.  Who  may  not  be  purchasers.  Neither  of  the 
referees,  nor  any  person  for  the  benefit  of  either  of  them, 
can  be  interested  in  any  purchase;  nor  can  a  guardian  of 
an  infant  party  be  interested  in  the  purchase  of  any  real 
property,  being  the  subject  of  the  action,  except  for  the 
benefit  of  the  infant.  All  sales  contrary  to  the  provisions 
of  this  section  are  void.     En.  March  11.  1872. 

Prac.  Act,  sec.  295.     En.  April  29,  1851. 

§  784.  Referee  rrust  make  a  report  of  the  sale  to  the 
court.  After  completing  a  sale  of  the  property,  or  any  part 
thereof  ordered  to  be  sold,  the  referees  must  report  the 
same  to  the  court,  with  a  description  of  the  different  par- 
cels  of   land    sold   to    each   purchaser;    the   name   of   the 


Sll  PARTITION    OF    RKAL    PROPERTY.  §§  785-7S3 

purchaser;  the  price  paid  or  secured;  the  terms  and  condi- 
tions of  the  sale,  and  the  securities,  if  any,  taken.  The 
report  must  be  filed  in  the  office  of  the  clerk  of  the  county 
where  the  property  is  situated.    En.  March  11,  1872. 

Cal.  Rep.  Cit.    137,  59. 

Prac.  Act,  sec.  296.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     1,  390. 

§  785.  If  confirmed,  conveyanv^-a-*  may  be  executed.  If 
the  sale  be  confirmed  by  the  court,  an  order  must  be  en- 
tered, directing  the  referees  to  execute  conveyances  and 
take  securities  pursuant  to  such  sale,  which  they  are  heie- 
by  authorized  to  do.  Such  order  may  also  give  directions 
to  them  respecting  the  disposition  of  the  proceeds  of  the 
Bale.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     118,  666;  137,  59. 

Prac.  Act,  sec.  297.     En.  April  29,  1851. 

CaL  Rep.  Cit.     27,  401. 

§  786.  Proceeding  if  a  licnhoider  becomes  a  purchaser. 
"When  a  party  entitled  to  a  share  of  the  property,  or  an 
encumbrancer  entitled  to  have  his  lien  paid  out  of  the 
sale,  becomes  a  purchaser,  the  referees  may  take  his  re- 
ceipt for  so  much  of  the  proceeds  of  the  sale  as  belongs  to 
him.     En.    March   11,   1872. 

Cal.   Rep.   Cit     116,   434. 

Prac.  Act,  sec.  298.     En.  April  29,  1851. 

§  787.  Conveyance  must  be  recorded,  and  will  be  a  bar 
against  parties.  The  conveyances  must  be  recorded  in 
the  county  where  the  premises  are  situated,  and  shall  be  a 
bar  against  all  persons  interested  in  the  property  in  any 
way  who  shall  have  been  named  as  parties  in  the  action, 
and  against  all  such  parties  and  persons  as  were  unknown, 
if  the  summons  was  served  by  publication,  and  against  all 
persons  claiming  under  them,  or  either  of  them,  and 
against  all  persons  having  unrecorded  deeds  or  liens  at 
the  commencement  of  the  action.  En.  March  11.  1872. 
Am'd.  1873-4,  326. 

Prac.  Act.  sec.  299.     En.  April  29,  1851. 

§  788.  Proceeds  of  sale  belonging  to  parties  unknown 
must  be   Invested  for  their  benefit.    When  there  are  pro- 


{}  789-791  PARTITION    OF    REAL    PROPERTT.  314 

ceeds  of  a  sale  belonging  to  an  unknown  owner,  or  to  a 
person  without  the  state,  who  has  no  legal  representative 
within  it,  the  same  must  be  invested  in  bonds  of  this  stale 
or  of  the  United  States,  for  the  boneflt  of  the  persons  en- 
titled thereto.     En.  March  11,  1872. 

Prac.  Act,  sec.  300.     En.  April  29,  1S51. 

§  789.  Investment  must  be  made  In  the  name  of  the 
clerk  of  the  county.  When  the  security  of  the  profcods  of 
sale  is  taken,  or  when  an  investment  of  any  such  proceeds 
is  made,  it  must  be  done,  except  as  herein  otherwise  pro- 
vided, in  the  name  of  the  clerk  of  the  county  where  the 
papers  are  filed,  and  his  successors  in  office,  who  must 
hold  the  same  for  the  use  and  benefit  of  the  parties  inter- 
ested, subject  to  the  order  of  the  court.  En.  March  11, 
1872. 

CaL   Rep.   Cit.     66,   447. 

Prac  Act,  sec.  301.     En.  April  29,  1851. 

§  790.  When  the  interests  of  the  parties  are  ascer- 
tained, securities  must  be  taken  in  their  names.  When  se- 
curity is  taken  by  the  referees  on  a  sale,  and  the  parties 
interest-^d  in  such  security  by  an  instrument  in  writing, 
under  thsir  hands,  delivered  to  the  referees,  agree  upon 
the  shai'es  and  proportions  to  which  they  are  respectively 
entitled,  or  when  shares  and  proportions  have  been  pre- 
viously adjudged  by  the  court,  such  securities  must  be 
taken  in  the  names  of,  and  payable  to,  the  parties  respect- 
ively entitled  thereto,  and  must  be  delivered  to  such  par- 
ties upon  their  receipt  therefor.  Such  agreement  and  re- 
ceipt must  be  returned  and  filed  with  the  clerk.  Eln- 
March  11,  1872. 

Prac.   Act,  sec.   302.     En.  April  29,   1851. 

§  791.  Duties  of  the  clerk  making  investments.  The 
clerk  in  whose  name  a  security  is  taken,  or  by  whom  an 
investment  is  made,  and  his  successors  in  office,  must  re- 
ceive the  interest  and  principal  as  it  becomes  due,  and 
apply  and  invest  the  same  as  the  court  may  direct;  and 
must  deposit  with  the  county  treasurer  all  securities 
taken,  and  keep  an  account  in  a  book  provided  and  kept 
for  that  purpose,  in  the  clerk's  office,  free  for  inspection 
by  all  persons,  of  investments  and  moneys  received  by  him 
thereon,  and  the  disposition  thereof.     En.  March  11,  1872. 

Cal.  Rep.  Cit     56,  129;    66,  447. 


J13  PARTITION    OF    REAL.    PROPERTY.  792-7M 

Prac.  Act,  sec.  303.     En.  April  29,  185L 

Cal.  Rep.  Cit.     2,  63. 

Deposit  in  court:    Sees.   572-574,  2104. 

§  792.  When  unequal  partition  is  ordered,  compensa- 
tion may  be  adjudged  in  certain  cases.  When  it  appears 
that  partition  cannot  be  made  equal  between  the  parties, 
according  to  their  respective  rights,  without  prejudice  to 
the  rights  and  interests  of  some  of  them,  and  a  partition 
be  ordered,  the  court  may  adjudge  compensation  to  be 
made  by  one  party  to  another,  on  account  of  the  in- 
equality; but  such  compensation  shall  not  be  required  to 
be  made  to  others  by  owners  unknown,  nor  by  an  infant, 
unless  it  appears  that  such  infant  has  personal  property 
suflBcient  for  that  purpose,  and  that  his  interest  will  be 
promoted  therebj'.  And  in  all  cases,  the  court  has  power 
to  make  compensatory  adjustment  between  the  respective 
parties,  according-  to  the  ordinary  principles  of  equity. 
En.  March  11,  1872. 

Prac.  Act,  sec.  304.     En.  April  29,  1851,    Am'd.  1866,  706. 

Cal.  Rep.  Clt.     2,  63;    64,  268. 

§  793.  The  share  of  an  infant  may  be  paid  to  his  guar- 
dian. When  the  share  of  an  infant  is  sold,  the  proceeds  of 
the  sale  may  be  paid  by  the  referee  making  the  sale,  to  his 
general  guardian  or  the  special  guardian  appointed  for 
him  in  the  action,  upon  giving  the  security  required  by  law 
or  directed  by  order  of  the  court.     En.  March  11,  1872. 

Prac.   Act.   sec.  305.    En.  April  29,  1851. 

Cal.   Rep.  Cit.     2,  63;     64,  269. 

General  guardian:   Post,  sees.  1747-1809. 
Guardian  ad  litem,  generally:  Ante,  sees.  372,  373. 

§  794.  The  guardian  of  an  Insane  person  may  receive 
the  proceeds  of  such  party's  interest.  The  guardian  who 
may  be  entitled  to  the  custody  and  management  of  the 
estate  of  an  insane  person,  or  other  person  adjudged  In- 
capable of  conducting  his  owti  affairs,  whose  interest  in 
rsal  property  has  been  sold,  may  receive,  in  behalf  of  such 
person,  his  share  of  the  proceeds  of  such  real  property 
fcx)m  the  referees,  on  executing,  with  sufficient  sureties,  an 
undertaking,  approved  by  a  judge  of  the  court,  that  he  will 


!§  705.  1%  PARTITION    OF    HIlAL    PIIOPERTT.  S1& 

faithfully  discharge  the  trust  reposed  In  him,  and  will 
render  a  true  and  just  account  to  the  person  entitled,  or  to 
his  legal  representative.  En.  March  11,  1872.  Ain'd.  18S0, 
11. 

Prac.  Act,  sec.  306.     En.  April  29,  185L 
Cal.  Rep.  Cit     64,  269;    117,  677. 

§  795.  A  guardian  may  consent  to  partition  without  ac- 
tion, and  execute  releases.  The  general  guardian  of  an 
infant,  and  the  guardian  entitled  to  the  custody  and  maix- 
agemcnt  of  the  estate  of  an  insane  person,  or  ether  person 
adjudged  incapable  of  conducting  his  ov/n  affairs,  who  is 
interested  in  real  estate  held  in  joint  tenancy,  or  in  com- 
mon, or  in  any  other  mannner  so  as  to  authorize  his  being 
made  a  party  to  an  action  for  the  partition  thereof,  may 
consent  to  a  partition  without  action,  and  agree  upon  the 
share  to  be  set  off  to  such  infant  or  other  person  entitled, 
and  may  execute  a  release,  in  his  behalf,  to  the  owners  of 
the  shares,  of  the  parts  to  which  they  may  be  respectively 
entitled,  upon  an  order  of  the  court.     En.  March  11,  1872. 

Cal.  Rep.  Cit,  80,  500. 

Prac  Act,  sec  307.     En.  April  29,  1851. 

5  796.  Costs  of  partition  a  lien  upon  shares  of  parceiv 
ers.  The  costs  of  partition,  including  reasonable  counsel 
fees,  expended  by  the  plaintiff  or  either  of  the  defendants. 
for  the  common  benefit,  fees  or  [of]  referees,  and  other 
disbursements,  must  be  paid  by  the  parties  respectively 
entitled  to  share  in  the  lands  divided,  in  proportion  to  their 
respective  interests  therein,  and  may  be  included  and 
specified  in  the  judgment.  In  that  case,  they  shall  be  a 
lien  on  the  several  shares,  and  the  judgment  may  be 
enforced,  by  execution,  against  such  shares,  and  against 
other  property  held  by  the  respective  parties.  When,  how- 
ever, litigation  arises  between  some  cf  the  parties  only, 
the  court  may  require  the  expense  of  such  litigation  to  be 
paid  by  the  parties  thereto,  or  any  cf  them.  En.  March  11, 
1872.     Am'd.  1873-4,  326. 

Cal.  Rep.  Cit.     68,  388;   103,  170;   136,  170. 

Prac.  Act,  sec.  308.  En.  April  29,  1851.  Am'd.  1871-2, 
230. 

Cal.  Rep.  Cit.     16,  471;   117,  676. 

Referees'  fees,  etc.:  Ante,  sec.  768;   post,  sec.  1028. 


317  PARTITION    OF    R13AL,    PROPERTY.  §§  797-799 

§  797.  The  court,  by  consent,  may  appoint  a  single 
referee.  The  court,  with  the  consent  of  the  parties,  may 
appoint  a  single  referee,  instead  of  three  referees,  in  the 
proceedings  under  the  provisions  of  this  chapter;  and  the 
single  referee,  when  thus  appointed,  has  all  the  powers  and 
may  perform  all  the  duties  required  of  the  three  referees. 
En.   March   11,   3872. 

Cal.  Rep.  Cit.  80,  500;  80,  501. 

Prac.  Act,  sec.  309.    En.  April  29,  1851. 

Cal.  Rep.  Cit  29,  255;   34,  374. 

Referees:  Sec.  763,    ante. 

§  798.  Expenses  of  previous  litigation  for  common  bene- 
fit ?l(pived.  If  it  appear  that  other  actions  or  proceedings 
have  been  necessarily  prosecuted  or  defended  by  any  one 
of  the  ten?Dts  in  common,  for  the  protection,  confirmation, 
or  perfecting  of  the  title,  or  setting  the  boundaries,  or 
making  a  survey  or  surveys  of  the  estate  partioned,  the 
court  shall  allow  to  the  parties  to  the  action  who  have  paid 
the  erpense  of  such  litigation  or  other  proceedings,  all  the 
expenses  necessarily  incurred  therein,  except  counsel  fees, 
which  shall  have  accrued  to  the  common  benefit  of  the 
other  tenants  in  common,  with  interest  thereon  from  the 
date  of  making  the  said  expenditures,  and  in  the  same 
kind  of  money  expended  or  paid,  and  the  same  must  be 
pleaded  and  allowed  by  the  court  and  included  in  the  final 
judgment,  and  ehall  be  a  lien  upon  the  share  of  each  ten- 
ant, respectively,  in  proportion  to  his  interest,  and  shall 
te  enforced  in  the  same  manner  as  taxable  costs  of  parti- 
tion are  taxed  and  collected.  En.  March  11,  1872.  Rep. 
1873-4,    226.     En.    1875-6,    97. 

Cal.   Rep.   Cit.     68,   S88. 

§  799.  Abstract  of  title  In  aciion  for  partition — When 
cost  of  allowed.  If  it  appears  to  the  court  that  it  was 
necessary  to  have  made  an  abstract  of  the  title  to  the 
property  to  be  partitioned,  and  such  abstract  shall  have 
been  procured  ty  the  plaintiff,  or  if  the  plaintiff  shall  have 
failed  to  have  the  same  made  before  the  commencement  of 
the  action,  and  aay  one  of  the  defendants  shall  have  had 
such  abstract  atteiv/ard  made,  the  cost  of  the  abstract, 
with  interest  thereon  from  the  time  the  same  is  subject 


55  300,  801  PARTITION   OF    REAL   PROPERTY.  3M 

to  the  inspection  of  the  respective  parties  to  the  anion, 
must  be  allowed  and  taxed.  Whenever  such  abstract  is 
produced  [procured?]  by  the  plaintiff,  before  the  com- 
mencement of  the  action,  he  must  file  with  his  complaint 
a  notice  that  an  abstract  of  the  title  has  been  made,  and 
is  subject  to  the  inspection  and  use  of  all  the  parties  to 
the  action,  designating  therein  where  the  abstract  will  be 
kept  for  inspection.  But  if  the  plaintiff  shall  have  failed 
to  procure  such  abstract  before  commencing  the  action, 
and  any  defendant  shall  procure  the  same  to  be  made,  he 
shall,  as  soon  as  he  has  directed  it  to  be  made,  file  a  notice 
thereof  in  the  action,  with  the  cleric  of  the  court,  stating 
who  is  making  the  same  and  where  it  will  be  kept  when 
finished.  The  court  or  tlie  judge  thereof  may  direct,  from 
time  to  time,  during  the  progress  of  the  action,  who  shall 
have  the  custody  of  the  abstract.     En.   March   11,  1872. 

Cal.  Rep.  Cit.     64,  629;    90,  455. 

§  800.  Abstract,  how  made  and  verified.  The  abstract 
mentioned  in  the  last  preceding  section  may  be  made  by 
any  competent  searcher  of  records,  and  need  not  be  certi- 
fied by  the  recorder  or  other  officer,  but  instead  thereof,  it 
must  be  verified  by  the  aflidavit  of  the  person  making  it, 
to  the  er.ect  that  he  believes  it  to  be  correct;  but  the  same 
may  be  corrected  from  time  to  time,  if  found  incorrect, 
under  the  direction  of  the  court.     En.  March  11,  1872. 

§  801.  Interest  allowed  on  disbursements  made  under 
direction  of  the  court.  Whenover,  during  the  proc:roRs 
of  the  action  for  partition,  any  disbursements  shall  have 
been  made,  under  the  direction  of  the  court,  or  the  judge 
thereof,  by  a  party  thereto,  interest  must  be  allowed 
thereon  from  the  time  of  making  such  disbursements. 
En.  March  11,  1872.     Cal.  Rep.  Cit.,  141,  385. 


m  USUUPATION    OP   OFFICE,    ETC.  §§ 


CHAPTER  V. 

ACTIONS     FOR     THE     USURPATION     OF  AN   OFFICE     OR     FRAN- 
CHISE. 

§  S02.     Certain    writs   abolished. 

§  S03.    Action    may   be    brought   against   any    party   usurping,    etc.,    any 

office   or  franchise. 
§  804.     Name   of  pei  son   entitled   to  office   may   be   set  forth   In   the   com- 

plsiint.    If  fees  have  been  received  by  the  usurper,    he  may 

be   arrested 
§  805.    Judgment    may    determine    the    rights    of    both    Incumbent    and 

claimant. 
5  806.    When    rendered    in    favor    of    applicant. 
IS  807.    Damages    may    be    recovered    by    successful    applicant. 
§  808.     When    several    persons    claim    the    same    office,    their    rights    may 

be    determined    l>y    a    single    action. 
§  809.    If     defendant     found     g^ulity,     what    judgment     to    be     rendered 

against    him. 
S  810.    Undertaking    when    action    brought    upon     information    of    pri- 
vate   party. 

Gen.  Cit,  to  Chap. — Cal.  Rep.  Cit.      85,  242. 

§  802.  Certain  writs  abolished.  The  writ  of  scire  facias 
is   abolished.     En.    March    11,    1872.     Am'd.    18S0,    11. 

Cal.  Rep.  Cit.  73,  493;  77,  372;  77,  376;  79,  106;  84.  120; 
84,  265;   84,  380;   108,  436;    129,  326;    129,  327. 

Corporations,  dissolution  of. — By  the  Civil  Code,  sees. 
39,  400,  it  is  declared  that  the  dissolution  of  corporations 
is  provided  for,  if  involuntary,  by  this  chapter  of  this  code; 
if  voluntary,  by  part  3,  title  6,  sees.  1227-1233  of  this  code. 

Receivers  upon  dissolution  of  corporation:  Ante,  sec. 
565. 

§  803.  Action  may  be  brought  against  any  party  usurp- 
ing, etc.,  any  office  or  franchise.  An  action  may  be 
brought  by  the  attorney  general,  in  the  name  of  the  people 
of  this  state,  upon  his  own  information,  or  upon  the  com- 
plaint of  a  private  party,  against  any  person  who  usurps, 
intrudes  into,  or  unlawfully  holds  or  exercises  any  public 
ofiBce,  civil  or  military,  or  any  franchise  within  this  state. 
And  the  attorney  general  must  bring  the  action,  whenever 
he  has  reason  to  believe  that  any  such  office  or  franchise 
has  been  usurped,  intruded  into,  or  unlawfully  held  or 
exercised  by  any  person,  or  when  he  is  directed  to  do  so  by 
the  governor.    En.   March   11,   1872. 

Cal.  Rep  Cit  54,  321;  55,  616;  66,  288;  69,  463;  73,  491; 
76,   437,'   77,  372;    82,   243;    84,   120;    84,  376;    92,   614; 


9S  804,  805  TJSURPATION    OF    OFFICE,     ETC.  WO 

96,  606;  100,  541;  101,  148;  114,  474;  115,  284;  116,  109; 
117,  614;  117,  615;  117,  616;  123,  146;  125,  529;  127, 
349;  127,  571;   128,  259;  129,  546;  132,  190;  145,  760. 

Prac.  Act,  sec.  310.    En.  April  29,  1851. 

Cal.   Rep.  Cit.    24,  127. 

Complaint:  Post,  sec.  804;  security  by  relator:  Post,  sec. 
810. 

Franchise — Civ.  Code,  sec.  358. 

Dissolution  of  corporations:   Civ.  Code,  sees.  399,  400. 

Quo  warranto,  what  court  may  issue:  Ante,  sec.  76, 
Bubd.  0. 

Office,  title  to — Contesting  elections:  Post,  sees.  1111- 
1127. 

Mandamus  to  compel  admission  to  office:  Post,  sec.  1085. 

§  804.  Name  of  person  entitled  to  office  may  be  set  forth 
in  tile  complaint.  If  fees  have  been  received  by  the 
usurper,  he  may  be  arrested.  Whenever  such  action  is 
brought,  the  attorney  general,  in  addition  to  the  state- 
ment of  the  cause  of  action,  may  also  set  forth  in  the  com- 
plaint the  name  of  the  person  rightly  entitled  to  the  office, 
with  a  statement  of  his  right  thereto;  and  in  such  case 
upon  proof  by  affidavit  that  the  defendant  has  receivc'd 
fees  or  emoluments  belonging  to  the  office,  and  by  means 
of  his  usurpation  thereof,  an  order  may  be  granted  by  a 
Justice  of  the  suprem^e  court,  or  a  judge  of  the  superior 
court,  for  the  arrest  of  such  defendant  and  holding  him 
to  bail;  and  thereupon  he  may  be  arrested  and  held  to 
bail  in  the  same  manner,  and  with  the  same  effect,  and 
subject  to  the  same  rights  and  liabilities,  as  in  other  civil 
actions  where  the  defendant  is  subject  to  arrest.  En. 
March  11,  1872.     Am'd.  1880,  11,  12. 

Prac.  Act,  sec.  311.    En.  April  29,  1851. 
Action — Where    several    claimants:    Post,  sec.  808.    Ar- 
rest and  bail:   Sees.  478  et  seq. 

§  805.  Judgment  may  determine  the  rights  of  both  In- 
cumbent and  claimant.  In  every  such  action,  judgment 
may  be  rendered  upon  the  right  of  the  defendant,  and 
also  upon  the  right  of  the  party  so  alleged  to  be  entitled, 
or  only  upon  the  right  of  the  defendant,  as  justice  may 
require.     En.   March  11,  1872. 

Cal.  Rep.  Cit.     69,  464;    73,  491;   118,  400;  132,  283. 


821  USURPATION    OF    OFFICE,     ETC.  55  SO(i-SOS 

Prac.  Act,  sec.  312.     En.  April  29,  1851. 
Cal.  Kep.  Cit.     27,  475. 
Judgment:    Post,  sec.   809. 

§  806.     When    rendered    in    favor  of    applicant.     If    the 

judgment  be  rendered  upon  the  right  of  the  person  so 
alleged  to  be  entitled,  and  the  same  be  in  favor  of  such 
person,  he  will  be  entitled,  after  taking  the  oath  of  office, 
and  executing  such  official  bond  as  may  be  required  by 
law,  to  take  upon  himself  the  execution  of  the  office.  En. 
March  11,  1872. 

Cal.  Rep.  CJt.     115,  283;    138,  39. 
Prac.  Act,  sec.  313.     En.  April  29,  1851. 

§  807.  Damages  may  be  recovered  by  successful  appfl- 
cant.  If  judgment  be  rendered  upon  the  right  of  the  per- 
son so  alleged  to  be  entitled,  in  favor  of  such  person,  he 
may  recover,  by  action,  the  damages  which  he  may  have 
sustainea  by  reason  of  the  usurpation  of  the  office  by  the 
defendant.    En.  March  11,  1872. 

Oal.  Rep.  Cit.     118,  397;     118,  400. 
Prac.  Act,  sec.  814.    En.  April  29,  1851. 
Costs  and  fine:   Post,  sec.  809. 

§  808.  When  several  persons  claim  the  same  office,  their 
rights  may  be  determined  by  a  single  action.  When  sev- 
eral persons  claim  to  be  entitled  to  the  same  office  or 
franchise,  one  action  may  be  brought  against  all  such  per- 
sons, in  order  to  try  their  respective  rights  to  such  office' 
or  franchise.     En.  March  11,  1872. 

Cal.  Rep.  Cit.    124,  13. 

Prac.  Act,  sec.  315.     En.  April  29,  1851. 

§  809.  If  defendant  found  guilty,  what  judgment  to  be 
rendered  against  him.  When  a  defendant,  against  whom 
such  action  has  been  brought,  is  adjudged  guilty  of  usurp- 
ing or  intruding  into,  or  unlawfully  holding  any  office, 
franchise,  or  privilege,  judgment  must  be  rendered  that 
such  defendant  be  excluded  from  the  office,  franchise,  or 
privilege,  and  that  he  pay  the  costs  of  the  action.  The 
court  may  also,  in  its  discretion,  impose  upon  the  defend- 
ant a  fine  not  exceeding  five  thousand  dollars,  which  fine, 

Code    Civil    Proc.— 21. 


5§  810,  813  ACTIONS    AGAINST    STEAMERS,    ETC.  323 

when  collected,  must  be  paid  into  the  treasury  of  tho 
state.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  79,  109;  82,  243;  84,  120;  84,  376;  84, 
380;    114,  479;    118,  400;    129,  546;   129,  547;    129.  548. 

Prac.  Act,  sec.  316.     En.  April  29,  1851. 

§  810.  Undertaking  when  action  brought  upon  informa- 
tion of  private  party.  When  the  action  is  brouslit  upon 
the  information  or  application  of  a  private  party,  the 
attorney  general  may  require  such  party  to  enter  into  an 
undertaking,  with  sureties  to  be' approved  by  the  attorney 
general,  conditioned  that  such  party  or  the  sureties  will 
pay  any  judgment  for  costs  or  damages  recovered  against 
the  plaintiff,  and  all  the  costs  and  expenses  incurred  iu 
the  prosecution  of  the  action.     En.   Stats.  1873-4,  326. 

Cal.  Rep.  Cit.  69,  221;  69,  463;  75,  148;  76,  437;  79, 
106;    84,  365;    108,  436;    108,  736;    129,  326;    129,  327. 


CHAPTER   VI. 

OF     ACTIONS     AGAINST     STEAMERS,     VESSELS.     AND     BOATS. 

§  813.  When    vessels,    etc.,    are   liable.     Their   liabilities   constitute   lien*. 

I  SU.  Actions,    how   brought. 

§  S15.  Complaint    must    be    verified. 

§  816.  Summons,    service   of. 

§  817.  Plaintiff  may  have  such  vessel,  etc.,  attached. 

§  818.  The   clerk   must   issue    the    writ   of   attachment. 

§  819.  Such    writ    must    be    directed    to    the    sheriff. 

§  820.  Writ,    execution    of. 

§  821.  The    owner,    master,    etc.,    may    appear    and    defend    such    vessel. 

§  822.  Discharge  of  attachment. 

•|  823.  After    appearance,    attachment    may,    on    motion,    be    discharged. 

8  824.  When    not    discharged    such    vessel,    etc.,    may    be    sold    at    pub- 
lic  auction.     Application   of   proceeds. 

§  825.  Mariners    and    others    may    assert    their    claim    for    wages,    not- 
withstanding  prior   attachment. 

§  82S.  Proof   of   the    claims   of   mariners   and    others. 

§  827.  Sheriff's    notice    of    sale    to    contain    measarement,    tonnage,    etc. 

§  813.  When  vessels,  etc.,  are  liable.  Their  liabilities 
constitute  liens.  All  steamers,  vessels,  and  boats  are 
liable: 

1.  For  services  rendered  on  board  at  the  request  of,  or 
on  contract  with,  their  respective  owners,  masters,  agents, 
or  consignees. 

2.  For  supplies  furnished  in  this  state  for  their  use,  at 


323  ACTIONS   AGAINST   STEAMERS,    ETC.  §  814 

the  request  of  their  resi>ective  owners,  masters,  agents,  or 
consignees. 

3.  For  work  done  or  materials  furnished  in  this  state  for 
their  construction,  repair,  or  equipment. 

4.  For   their  wharfage  and   anchorage   within   this  state. 

5.  For  nonperformance,  or  malperformance,  of  any  con- 
tract for  the  transportation  of  persons  or  property  be- 
tween places  within  the  state,  made  by  their  respective 
owners,  masters,  agents,  or  consignees. 

6.  For  injuries  committed  by  them  to  persons  or  prop- 
erty in  this  state. 

Deman-ds  for  these  several  causes  constitute  liens  upon 
all  steamers,  vessels  and  boats,  and  have  priority  in  their 
order  herein  enumerated,  and  have  preference  over  all 
other  demands;  but  such  liens  only  continue  in  force  for 
the  period  of  one  year  from  the  time  the  cause  of  action 
accrued.     En.   March  11,  1872.     Am'd.   1873-4,  327. 

Cal.  Rep.  Cit.  124,  215;  133,  481;  142,  242;  142,  243; 
142,  244.     Subd.  2—142,  141. 

Prac.  Act,  sec.  317.     En.  April  29,  1851.     Am'd.  1860,  304. 

Cal.  Rep.  Cit.    13,  371;    18,  532. 

Seamen's  wages,  jurisdiction  of  actions:    Ante,   sec.   114. 

Salvage.   Civ.  Code,  sec.  2079. 

Preference  over  all  other  demands,  as  to  labor  claims: 
Post,  sees.  1204-1206. 

Lien,  -defined:   Sec.  1180. 

Justices  of  the  peace  have  not  jurisdiction  where  the 
suit  or  proceeding  Is  for  tbe  recovery  of  seamen's  wages 
for  a  voyage  performed,  in  whole  or  in  part,  without  the 
waters  of  this  state:   Ante,  sec.  114. 

§  814.  Actions,  how  brought.  Actions  for  any  of  the 
causes  specified  in  the  preceding  section  must  be  brought 
against  the  owners  by  name,  if  known,  hut  if  not  known, 
that  fact  shall  be  stated  in  the  complaint,  and  the  defend- 
ants shall  be  designated  as  unknown  owners.  Other 
persons  having  a  lien  upon  the  vessel  may  be  made  de- 
fendants to  the  action,  the  nature  and  amount  of  such  lien 
being  stated  in  the  complaint.  En.  March  11,  1872.  Am'd. 
1873-4,  328. 

Prac.  Act,  sec.  318.     En.  April  29,  1851. 

Unknown  owners — Fictitious  designation  of:  Ante,  see. 
474. 

Parties,  generally:  Ante,  sees.  367  et  secj. 


55  Slo-519  ACTIONS     ACJAINST     STUAMERS,     ETC.  324 

§  815.  Complairtt  mujt  be  verified.  The  complaint  must 
designate  the  steamer,  vessel,  or  hoat  by  name,  and  must 
be  verified  by  the  oath  of  the  plaintiff,  or  some  one  on  his 
behalf.     En.  March  11,  1872. 

Prac.  Act,  sec.  319.     En.  April  29,  1851. 

Verification  of  pleadings:   Ante,  sec.   446. 

§  816.  Summons,  se»*vice  of.  The  summons  and  copy  of 
the  complaint  must  be  served  on  the  owners  if  they  can  be 
found;  otherwise,  they  may  be  served  on  the  master,  mate, 
or  person  having  charge  of  the  steamer,  vessel  or  boat. 
E)n.  March   11,  1872.     Am'd.  1873-4,  328;    1880,  12. 

Prac.  Act,  sec.  320.     En.  April  29,  1851. 

Service  of  summons  generally:   Ante,  sees.  410  et  seq. 

§  817.  Plaintiff  may  have  such  vessel,  etc.,  attached. 
The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at 
any  time  afterward,  may  have  the  steamer,  vessel,  or  boat, 
with  its  tackle,  apparel,  and  furniture,  attached  as  secur- 
ity for  the  satisfaction  of  any  judgment  that  may  be  re- 
covered in  the  action.  En.  March  11,  1872.  Am'd.  1873-4, 
328. 

Prac.  Act,  sec.  321.     En.  April  29,  1851. 

Attachment  generally:  Ante,  sees.  537  et  seq. 

§  818.    The  clerk  must    issue    the  writ    of    attachment 

The  clerk  of  the  court  must  issue  a  writ  of  attachment  on 
the  application  of  the  plaintiff,  upon  receiving  a  written 
undertaking  on  behalf  of  the  plaintiff,  executed  by  two  or 
more  sufficient  sureties,  to  the  effect  that  if  the  judgment 
be  rendered  in  favor  of  the  owner  of  the  steamer,  vessel, 
or  boat,  as  the  case  may  be,  he  will  pay  all  costs  and 
damages  that  may  be  awarded  against  him,  and  all  dam- 
ages that  may  be  sustained  by  him  from  the  attachment, 
not  exceeding  the  sum  specified  in  the  undertaking,  which 
shall  in  no  case  be  less  than  five  hundred  dollars.  En. 
March  11,  1872.     Am'd.   1873-4,   328. 

Prac.  Act,   sec.   322.     Eto.  April  29,   1851. 

Attachment  bond,  generally:   Compare  sec.  539,  ante. 

Qualifications  of  sureties:   Post,  sec.  1057. 

§  819.     Such  writ  must  be  directed  to  the  sheriff.     The 

•writ  must  be  directed  to  the  sheriff  of  the  county  within 
which  the  steamer,  vessel,  or  boat  lies,  and  direct  him  to 


J25  ACTIONS    AGAINST    STEAMERS,     ETC.  §§  81:0-832 

attach  such  steamer,  vessel,  or  boat,  with  its  tackle,  ap- 
parel, and  furniture,  and  keep  the  same  in  his  custody 
until  discharged  in  due  course  of  law.  En.  March  11, 
1872.     Am'd.  1873-4,  329. 

Prac.  Act,   sec.  323.     En.   April   29,   1851. 


§  820.  Writ,  execution  of.  The  sheriff  to  whom  the 
writ  is  directed  and  delivered  must  execute  it  without  de- 
lay, and  must  attach  and  keep  in  his  custody  the  steamer, 
vessel,  or  boat  named  therein,  with  its  tackle,  apparel,  and 
furniture,  until  discharged  in  due  course  of  law;  but  the 
sheriff  is  not  authorized  by  any  such  writ  to  interfere  with 
the  discharge  of  any  merchandise  on  board  of  such  steam- 
er, vessel,  or  boat,  or  with  the  removal  of  any  trunks  or 
oCher  property  of  passengers,  or  of  the  captain,  mate,  sea- 
men, steward,  cook,  or  other  persons  employed  on  board. 
En.  March  11,  1872.     Am'd.  1873-4,  329. 

Prac.  Act,  sec.  324.    En.  April  29,  1851. 


§  821.  The  owner,  master,  etc.,  may  appear  and  defend 
such  vessel.  The  owner,  or  the  master,  agent,  or  con- 
signee of  the  steamer,  vessel,  or  boat,  may,  on  behalf  of 
the  owner,  appear  and  answer,  or  plead  to  the  action;  and 
may  except  to  the  sufficiency  of  the  sureties  on  the  under- 
taking filed  on  behalf  of  the  plaintiff,  and  may  require 
sureties  to  justify,  as  upon  bail  on  arrest.  Eln.  March  11, 
1872.     Am'd.  1873-4,  329. 

Prac.  Act,  sec.  325.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  7,  409. 

Appearance:   Post,   sec.   1014. 

Answer:   Ante,  sec.  437. 

Justification  of  sureties:  Ante,  sec.  495, 

§  822.  Discharge  of  attachment.  After  the  attachment 
is  levied,  the  owner,  or  the  master,  agent,  or  consignee  of 
the  steamer,  vessel,  or  boat,  may,  in  behalf  of  the  owner, 
have  the  attachment  discharged,  upon  giving  to  the  sher- 
iff an  undertaking  of  at  least  two  sufficient  sureties  In  an 
amount  sufficient  to  satisfy  the  demand  in  suit,  besides 
costs,  or  depositing  that  amount  with  the  sheriff.  Upon 
receiving  such  undertaking  or  amount,  the  sheriff  must 


§§823,824  ACTIONS    AGAINST    STEAMERS,    ETC.  326 

restore  to  the  owner,  or  the  master,  agent  or  consignee  of 
the  owner,  the  steamer,  vessel,  or  boat  attached.  En. 
March  11,  1872.     Am'd.  1873-4,  330. 

Prac.  Act,  sec.  326.    En.  April  29,  1851. 

Compare  sec.  540. 

§  823.  After  appearance,  attachment  may,  on  motion,  be 
discharged.  After  the  appearance  in  the  action  of  the 
owner,  the  attachment  may,  on  motion,  also  be  discharged, 
in  the  same  manner,  ami  on  like  terms  and  conditions, 
as  attachments  in  other  cases,  subject  to  the  provisions 
of  sec.  825.     En.  March  11,  1872.     Am'd.  1873-4,  330. 

Prac.  Act,  sec.  327.     En.  April  29,  1851. 

Discharge   of  attachment:    Ante,   sees.    554-558. 

§  824.  V/hen  not  discharged  such  vessel,  etc.,  may  be 
sold  at  public  auction.  Application  of  proceeds.  If  the 
attachment  be  not  discharged,  and  a  judgment  be  recov- 
ered in  the  action  in  favor  of  the  plaintiff,  and  an  execu- 
tion be  issued  thereon,  the  sheriff  must  sell  at  public  auc- 
tion, after  publication  of  notice  of  such  sale  for  ten  days, 
the  steamer,  vessel,  or  boat,  with  its  tackle,  apparel,  and 
furniture,  or  such  interest  therein  as  may  be  necessary, 
and  must  apply  the  proceeds  of  the  sale  as  follows: 

1.  When  the  action  is  brought  for  demands  other  than 
the  wages  of  mariners,  boatmen,  and  others  employed  in 
the  service  of  the  steamer,  vessel,  or  boat  sold,  to  the  pay- 
ment of  the  amount  of  such  wages,  as  specified  in  the 
execution. 

2.  To  the  pajonent  of  the  judgment  and  costs,  including 
his  fees. 

3.  He  must  pay  any  balance  remaining  to  the  owner,  or 
to  the  master,  agent,  or  consignee,  who  may  have  ap- 
peared on  behalf  of  the  owner,  or  if  there  be  no  appear- 
ance, then  into  court,  subject  to  the  claim  of  any  party 
or  parties  legally  entitled  thereto.  En.  March  11,  1872. 
Am'd.  1873-4,  330. 

Prac.  Act,  sec.  328.     En.  April  29,  1851. 

Sale  on  execution,  generally:   Ante,  sees.  694  et  seq. 

Payment  Into  court:   Ante,  sees.  572-574;   post,  sec.  2104. 


327  ACTIONS    AGAINST    STEAMERS,    ETC.  §§  820,  82S 

§  825.  Mariners  and  others  may  assert  their  claim  for 
wages,  notwithstanding  prior  attachment.  Any  mariner, 
boatman,  or  other  person  employed  in  the  service  of  the 
steamer,  vessel,  or  boat  attached,  who  may  wish  to  assert 
his  claim  for  wages  against  the  same,  the  attchments  be- 
ing issued  for  other  demands  than  such  wages,  may  file  an 
af&davit  of  his  claim,  setting  forth  the  amount  and  the 
particular  service  rendered,  with  the  clerk  of  the  court; 
and  thereafter  no  attachment  can  be  discharged  upon  filing 
an  undertaking,  unless  the  amount  of  such  claim,  or  the 
amount  determined  as  provided  in  the  next  section,  be 
covered  thereby,  in  addition  to  the  other  requirements; 
and  any  execution  issued  against  such  steamer,  vessel,  or 
boat,  upon  judgment  recovered  thereafter,  must  direct  the 
application  of  the  proceeds  of  any  sale: 

1.  To  the  payment  of  the  amount  of  such  claims  filed,  or 
the  amount  determined  as  provided  in  the  next  section, 
which  amount  the  clerk  must  insert  in  the  writ; 

2.  To  the  payment  of  the  judgment  and  costs  and 
sheriff's  fees,  and  must  direct  the  payment  of  any  balance 
to  the  owner,  master,  or  consignee  who  may  have  ap- 
peared in  the  action;  but  if  no  appearance  by  them  be 
made  therein,  it  must  direct  a  deposit  of  the  balance  in 
court.     En.  March  11,  1872. 

Prac.  Act,  sec.  329.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     2,  310. 

Preferred  claims,  for  wages,  etc.:   Post,  sees.  1204-1207. 

Deposit  in  court:  Ante,  sees.  572  et  seq.;  post,  sec.  2104. 


§  826.     Proof  of  the  claims  of  mariners  and  others.     If 

the  claim  of  the  mariner,  boatman,  or  other  person,  filed 
with  the  clerk  of  the  court,  as  provided  in  the  last  section, 
be  not  contested  within  five  days  after  notice  of  the  filing 
thereof  by  the  owner,  master,  agent,  or  consignee  of  the 
steamer,  vessel,  or  boat  against  which  the  claim  is  filed,  or 
by  any  creditor,  it  shall  be  deemed  aximltted;  but  if  con- 
tested, the  clerk  must  indorse  upon  the  affidavit  thereof  a 
statement  that  it  is  contested,  and  the  grounds  of  the  con- 
test, and  must  immediately  thereafter  order  the  matter  to 
a  single  referee  for  his  determination,  or  he  may  hear  the 
procfs  and  determine  the  matter  himself.  The  judgment 
of  the  clerk  or  referee  may  be  reviewed  by  a  court  in 


§  <;::  actions  against  stkamkrs,  etc.  ssb 

which  the  action  Is  pending,  or  a  judge  thereof,  immedi- 
ately after  the  same  is  given,  and  the  judgment  of  the 
court  or  judge  shall  be  final.  On  the  review,  the  court 
or  judge  maj-  use  the  minutes  of  the  proofs  talvcn  by  the 
clerk  or  referee,  or  may  take  the  proofs  anew.  Eii.  March 
11,  1872.     Ara'd.  1873-4,  331  ;v  1880,  12. 

Prac.   Act,  sec.   330.     En.   April   29,   1851. 

§  827.  Sheriff's  notice  of  sale  to  contain  measurement, 
tonnage,  etc.  The  notice  of  sale  published  by  the  sheriff 
must  contain  a  statement  of  the  measurement  and  tonnage 
of  the  steamer,  vessel,  or  boat,  and  a  general  description 
of  her  condition.    En.  March  11,  1872. 

Prac.  Act,  sees.  331,  332.     En.  April  29,  1851. 


323  PL^CE    OF    TRIAL.    OF    ACTIONS.  S  833 


TITLE  XL 

OF    PROCEEDINGS    IN    JUSTICES'    COURTS. 

Chapter  I.    Place  of  Trial  of  Actions  in  Justices'  Courts, 
§§  832-838. 

II.  Manner    of    Commencing    Actions    in    Justices' 

Courts,  §§  839-850. 

III.  Pleadings   in  Justices'  Courts,   §§   851-860. 

rV.    Provisional      Remedies      in     Justices'     Courts, 
§§  861-870. 
V.    Judgment    by     Default     in     Justices'     Courts, 
§§  871,' 872. 
VI.     Time  of  Trial  and  Postponements  in  Justices' 

Courts,    §§   873-877. 
VTI.     Trials   in  Justices'  Courts,   §§  878-887. 
VIII.     Judgments  (Other  than  by  Default)  in  Justices' 
Courts,  §§  889-900. 
IX.     Executions    from    Justices'    Courts,    §§    901-905. 
X.     Contempts    in    Ju.stices'    Courts,    §§    906-910. 

XI.  Dockets  of  Justices,  §§   911-918. 

XII.  General      Provisions      Relating     to     Justice^ 

Courts,  §§  919-926. 


CHAPTER   L 

PLACE   OP   TRIAL.   OF   ACTIONS    IN   JUSTICES'    COmRTS. 

5  832.  Actions,    in   -what   township   or  city   may  be   commencei, 

5  833.  Place   of   trial    may  be   changed   In  certain   cases. 

§  834.  Limitation    on    the   right    to   change. 

§  835.  To    what    court    transferred. 

j  836.  Proceedings   after    order   changing   place    of    trial. 

§  837.  Effect   of  an    order   changing   place   of   trial. 

§  838.  Transfer    of    cases    to    the    superior   court. 

§  832.  Actions,  in  what  township  or  city  may  be  com- 
menced. Actions  in  justices'  courts  must  be  commenced, 
and,  subject  to  the  right  to  change  the  place  of  trial,  as  in 
this  chapter  provided,  must  be  tried: 

1.  If  there  be  no  justices'  court  for  the  township  or  city 
in  which  the  defendant  resides:  in  any  city  or  township  of 
the  county  in  which  he  resides. 


5  833  PL.\CE    OF   TRIAL   OF    ACTIONS.  J30 

2.  When  two  or  more  persons  are  jointly,  or  jointly  and 
severally,  bound  in  any  debt  or  contract,  or  otherwise 
jointly  liable  in  the  same  action,  and  reside  in  different 
townships  or  different  cities  of  the  same  county,  or  in  dif- 
ferent counties:  in  the  township  or  city  in  which  any  of 
the  persons  liable  may  reside. 

3.  In  cases  of  injury  to  the  person  or  property:  in  the 
township  or  city  where  the  injury  was  committed,  or 
where  the  defendant  resides. 

4.  If  for  the  recovery  of  personal  property,  or  the  value 
thereof,  or  damages  for  taking  or  detaining  the  same:  in 
the  township  or  city  in  which  the  property  may  be  found, 
or  in  which  the  property  was  taken,  or  in  which  the  de- 
fendant resides. 

5.  When  the  defendant  is  a  nonresident  of  the  county: 
in  any  township  or  city  wherein  he  may  be  found. 

6.  When  the  defendant  is  a  nonresident  of  the  state:  in 
any  township  or  city  in  the  state. 

7.  When  a  person  has  contracted  to  perform  an  obliga- 
tion at  a  particular  place,  and  resides  in  another  county, 
township,  or  city:  in  the  township  or  city  in  which  such 
obligation  is  to  be  performed,  or  in  which  he  resides;  and 
the  township  or  city  in  which  the  obligation  is  incurred 
shall  be  deemed  to  be  the  township  or  city  in  which  it  is 
to  be  performed,  unless  there  is  a  special  contract  to  the 
contrary. 

8.  When  the  parties  voluntarily  appear  and  plead  with- 
out summons:  in  any  township  or  city  in  the  state. 

9.  In  all  other  cases:  in  the  township  or  city  in  which 
the  defendant  resides.  En.  March  11,  1872.  Am'd.  1873-4, 
331. 

Cal.  Rep.  Cit     88,  410;    141,  267.    Snbd.   7—66,  442. 

Prac.  Act,  sec.  535.     En.  April  29,  1851.     Am'd,  1853,  278; 

1867-8,  550. 

Cal.  Rep.  Cit.     34,  326. 

Place  of  trial  generally:   Ante,  sees.  392  et  seq. 

Jurisdiction  of  justice  court:  Ante,  sees.  112-115;  post, 
sec.  925. 

§  833.  Place  of  trial  may  be  changed  in  certain  cases. 
The  court  may,  at  any  time  before  the  trial,  on  motion, 
change  the  place  of  trial  in  the  following  cases: 


S21  PLACE    OF   TRtAL    OP    ACTIONS.  §§  S34-S38 

1.  When  it  appears  to  the  satisfaction  of  the  justice  be- 
fore whom  the  action  is  pending,  by  affidavit  of  either 
party,  that  such  justice  is  a  material  witness  for  either 
party; 

2.  When  either  party  malies  and  files  an  affidavit  that  he 
believes  that  he  cannot  have  a  fair  and  impartial  trial 
before  such  justice,  by  reason  of  the  interest,  prejudice,  or 
bias  of  the  justice; 

3.  When  a  jury  has  been  demanded,  and  either  party 
makes  and  files  an  affidavit  that  he  cannot  have  a  fair  and 
impartial  trial,  on  account  of  the  bias  or  prejudice  of  th* 
citizens  of  the  township  or  city  against  him; 

4.  When,  from  any  cause,  the  justice  is  disqualified  from 
acting; 

5.  When  the  justice  is  sick  or  unable  to  act.  En.  Maxch 
11,  1872. 

Cal.  Rep.  Cit.     67,  106.     Subd.  2—123,  413. 

Prac.  Act,  sec.  582.  En.  April  29,  1851.  Am'd.  1853,  279; 
1863,  502. 

Cal.  Rep.  Cit.  22,  37;  123,  413. 

Change  of  venue,  generally:   Ante,  sees.  397  et  seq. 

§  834.  Limitation  on  the  right  to  change.  The  place  of 
trial  cannot  be  changed,  on  motion  of  the  same  parf^ 
more  than  once,  upon  any  or  all  the  grounds  specified  fn 
the  first,  second,  and  third  subdivisions  of  the  preceding 
section.    En.  March  11,  1872. 

§  835.  To  what  court  transferred.  When  the  court  or- 
ders the  place  of  trial  to  be  changed,  the  action  must  be 
transferred  for  trial  to  a  court  the  parties  may  agree  up- 
on; and  iif  they  do  not  so  agree,  then  to  another  justices' 
court  in  the  same  county.    En.  March  11,  1872. 

§  836.  Proceedings  after  order  changing  place  of  trial. 
After  an  order  has  been  made,  transferring  the  action  for 
trial  to  another  court,  the  following  proceedings  must  be 
had: 

1.  The  justice  ordering  the  transfer  must  immediately 
transmit  to  th>e  justice  of  the  court  to  which  it  is  trans- 
ferred, on  payment  by  the  party  applying  of  all  the  costs 
that  have  accrued,  all  the  papers  in  the  action,  together 


J§  S37.  838  PU'^.CE   OF   TRIAL  OF  ACTIONS.  832 

with  a  certified  transcript  from  his  docket  of  the  pro- 
ceedings therein; 

2.  Upon  the  receipt  by  him  of  such  papers,  the  justice 
at  the  court  to  which  the  case  is  transferred  must  issue  a 
notice,  stating  when  and  where  the  trial  will  take  place, 
which  notice  must  be  served  upon  the  parties  at  least  one 
day  before  the  time  fixed  for  trial.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     67,  106. 

§  837.  Effect  of  an  order  changing  place  of  trial.  From 
the  time  the  order  changing  the  place  of  trial  is  made  the 
court  to  which  the  action  is  thereby  transferred  has  the 
same  jurisdiction  over  it  as  though  it  had  been  commenced 
In  such  court.     En.   March  11,  1872. 

Cal.  Rep.  Cit.     &0,  443. 

§  838.  Transfer  of  cases  to  the  superior  court.  The 
parties  to  an  action  In  a  justices'  court  cannot  give  evi- 
dence upon  any  question  which  involves  the  title  or  pos- 
session of  real  property,  or  the  legality  of  any  tax,  impost, 
assessment,  toll,  or  municipal  fine;  nor  can  any  issue  pre- 
senting such  question  be  tried  by  such  court;  and  if  it  ap- 
pear, from  the  answer  of  the  defendant,  verified  by  his 
oath,  that  the  determination  of  the  action  will  necessarily 
involve  the  question  of  title  or  possession  to  real  property, 
or  the  legality  of  any  tax,  impost,  assessment,  toll,  or 
municipal  fine,  the  justice  must  suspend  all  further  pro- 
ceedings in  the  action  and  certify  the  pleadings,  and,  if 
any  of  the  pleadings  are  oral,  a  transcript  of  the  same, 
from  his  docket  to  the  clerk  of  the  superior  court  of  the 
county;  and  from  the  time  of  filing  such  pleadings  or 
transcript  with  the  clerk,  the  superior  court  shall  have 
over  the  action  the  same  jurisdiction  as  if  it  had  been  com- 
menced therein;  provided,  that  in  cases  of  forcible  entry 
and  detainer,  of  which  justices'  courts  have  jurisdiction, 
any  evidence,  otherwise  competent,  may  be  given,  and  any 
question  properly  involved  therein  may  be  determined. 
En.  March  11,  1872.     Am'd.  1880,  18. 

Cal    Rep    Cit.     50,  510;   51,  501;   56,  147;   66,  638;  66,  641; 

"69    558-    76,   184;    76,   185;    77,   542;    80,   560;    80,   562; 

92'  51-  '95,  380;   103,  139;  103,  140;   103,  141;   103,  142; 

114    505;    114,   506;    114,   507;    126,   516;    126,  574;    131, 

217;  135!  68;  140,  135. 

Prac.  Act,  sec.  581.     En.  April  29,  1851.     Am'd.  1864,  117. 

Cal.  Rep.  Cit.     9,  50;   17,  69. 


383  C50MMENCING   ACTIONS.  15  839-841 

Certifyincf  to  superior  court,  from  justices'  courts  In 
cities  and  counties:   Ante,  sec.  92. 

Title  or  possession  of  realty  involved:  Ante,  sec.  112, 
subd.    2. 

Legality  of  tax,  etc.,  involved:  Ante,  sec.  112,  subd.  4. 

Forcible  entry  and  detainer,  jurisdiction  of:  Ante,  sec. 
113,  subd.  1. 


CHAPTER    II. 

MANNER   OF   COMMENCING    ACTIONS    IN    JUSTICES'    COURTS. 

§  839.  Actions,    how    commencerl. 

I  840.  Summons   may    Ibsup   within    a   year. 

§  841.  Defendant    may    waive    summonB. 

§  842.  Parties  may  appear   In   person   or  by   attorney. 

I  843.  When    guardian    necessary,     how    appointed. 

§  844.  Summons,    how    Issued,    directed,    and    what    to    contain. 

§  845.  Time    for   appearance    of  defendant. 

i848.  Alias    summons. 

8^.  Same. 

848.  Service   of   summons   outside  of  county. 

849.  Summons,    by    whom   and    how   served   and   returned. 

§  850.  Notice    of   hearing. 

§  839.  Actions,  how  commenced.  An  action  in  a  jus- 
tice's court  is  commenced  by  filing  a  complaint.  En. 
March  11.  1872.     Am'd.  1875-6,  98. 

Cal,  Rep.  Clt.    81,  88. 

Prac.  Act,  sec.  588.  En.  April  29,  1851.  Am'd.  1869-70, 
687. 

Actions,  in  cities  and  counties,   title,  etc.:   Sec.   89. 
Commencement  of  action:  Sees.   350,  405.    Action,  when 
pending:  Post.   sec.   1049. 
Complaint  generally:   Ante,  sec.  426. 
Fees  payable  in  advance:   Sec.  91,  ante. 

§  840.  Summons  may  Issue  within  a  year.  The  court 
must  indorse  on  the  complaint  the  date  upon  which  it  was 
filed,  and  at  any  time  within  one  year  thereafter  the  plain- 
tiff may  have  summons  issued.     En.   March  11,  1872. 

Issuance  of  summons,  generally:   Ante,  sec.  406. 

Payment  of  fees.  In  cities  and   counties:  Ante,   sec.   91. 

§  841.  Defendant  may  v>/aive  summons.  At  any  time 
after  the  complaint  is  filed,  the  defendant  may.  In  writing, 


5§  R42-M4  COMMK.VCING    ACTIONS.  334 

or  by  appearing  and  pleading,  waive  the  issuing  of  sum- 
mons.    En.  March  11,  1872. 

Waiver — compare  sec.  406,  ante. 

§  842.     Parties  may    appear  in    person    or    by  attorney. 

Parties  in  justices'  courts  may  appear  and  act  in  person  or 
by  attorney;  and  any  person  except  the  constable  by  whom 
the  summons  or  jury  process  was  served,  may  act  as 
attorney.     En.    March    11,   1872. 

Cal.    Rep.    Cit.     72,    38. 

Prac.  Act,  sec.  534.     En.  April  29,  1851. 

Justices'   court  piactitioners:  Ante,   sec,  96. 
Attorneys,   generally:  Ante,   sees.   275   et  seq. 

§  843.  When  guardian  necessary,  how  appointed.  When 
an  infant,  insane,  or  incompetent  person  is  a  party,  he 
must  appear,  either  by  his  general  guardian  if  he  have 
one,  or  by  a  guardian  ad  litem  appointed  by  the  justice. 
When  a  guardian  ad  litem  is  appointed  by  the  justice,  he 
must  be  appointed  as  follows: 

1.  If  the  infant,  insane,  or  incompetent  person  be  plain- 
tiff, the  appointment  must  be  made  before  the  summons 
Is  issued,  upon  the  application  of  the  infant,  if  he  be  of  the 
age  of  fourteen  years;  if  under  that  age,  or  if  insane  or  in- 
competent, upon  the  application  of  a  relative  or  friend. 

2.  If  the  infant,  insane,  or  incompetent  person  be  defend- 
ant, the  appointment  must  be  made  at  the  time  the  sum- 
mons is  returned,  or  before  the  answer,  upon  the  applica- 
tion of  the  infant,  if  he  be  of  the  age  of  fourteen  years, 
and  apply  at  or  before  the  summons  is  returned;  if  he  be 
under  the  age  of  fourteen,  or  be  insane  or  incompetent,  or 
neglect  so  to  apply,  then  upon  the  application  of  a  relative 
or  friend,  or  any  other  party  to  the  action,  or  by  the  jus- 
tice, on  his  own  motion.  En.  March  11,  1872.  Am'd.  1873- 
4,  333;    1880,  18. 

Prac.  Act,  sec.  539.     En.  April  29,  1851. 

Guardians — compare   sees.   372,   373,   ante. 

§  844.  Summons,  how  issued,  directed,  and  what  to 
contain.  The  summons  must  be  directed  to  the  defend- 
ant,  signed   by  the  justice,   and   must   contain: 

1.  The  title  of  the  court,  name  of  the  county,  city  and 


835  COMMENCING    ACTIONS.  §§  S45,  S16 

county,  or  township  in  which  the  action  is  brought,  and 
the  names  of  the  parties  thereto; 

2.  A  direction  that  the  defendant  appear  and  answer 
before  the  justice,  at  his  office,  as  specified  in  section  eight 
hundred  and  forty-five  of  this  code; 

3.  A  notice  that  unless  the  defendant  so  appear  and 
answer,  the  plaintiff  will  take  judgment  for  any  money  or 
damages  demanded  in  the  complaint,  as  arising  upon  con- 
tract, or  will  apply  to  the  court  for  the  relief  demanded 
in  the  complaint.  If  the  plaintiff  appears  by  attorney,  the 
name  of  the  attorney  must  be  indorsed  upon  the  summons. 
En.  March  11,  1872.     Am'd.  1875-6,  98;    1880,  19;    1899,  100. 

Cal.  Rep.  Cit.     67,  397;  107,  US.     Subd.  1—120,  514.    Subd. 
5—67,  396. 

Prac.  Act,  sec.  540.     En.  April  29,  1851. 

Contents  of  summons — compare  sec.   407,   ante. 

§  845.  Time  for  appearance  of  defendant.  The  time 
specified  in  the  summons  for  the  appearance  of  the  defend- 
ant must   be   as   follows: 

1.  If  an  order  of  arrest  be  indorsed  upon  the  summons, 
forthwith. 

2.  In  all  other  cases,  the  summons  must  contain  a  direc- 
tion that  the  defendant  must  appear  and  answer  the  com- 
plaint within  five  days,  if  the  summons  be  served  in  the 
city  and  county,  township,  or  city,  in  which  the  action  is 
brought;  within  ten  days,  if  served  out  of  the  township 
or  city,  but  in  the  county  in  which  the  action  is  brought, 
and  within  twenty  days,  if  served  elsewhere.  En.  March 
11,  1872.     Am'd.   1873-4,  407;    1875-6,   99;    1880,  19. 

Cal.   Rep.   Cit.     71,   159. 

Prac.  Act,  sec.  541.  En.  April  29,  1851.  Am'd.  1854,  67; 
1867-8,   551. 

Cal.  Rep.   Cit.     8,  340;    34,  645. 

§  846.  Alias  summons.  If  the  summons  Is  returned 
without  being  served  upon  any  or  all  of  the  defendants, 
the  justice,  upon  the  demand  of  the  plaintiff,  may  issue 
an  alias  summons  in  the  same  form  as  the  original,  except 
that  he  may  fix  the  time  for  the  appearance  of  the  defend- 
ant at  a  period  not  to  exceed  ninety  days  from  its  date. 
En.    March    11,   1872. 

Alias  summons,  generally,  Ante,  sec  408. 


S  847-849  COMMENCING     ACTIONS.  836 

§  847.  Same.  The  justice  may,  within  a  year  from  the 
date  of  the  filing  of  the  complaint,  issue  as  many  alias  sum- 
mons as  may  be  demanded  by  the  plaintiff.  En.  March  11, 
1872. 

Alias  summons:  Ante,  sec.  408, 

§  848.  Service  of  summons  outside  of  county.  The 
summons  cannot  be  served  out  of  the  county  of  the  justice 
before  whom  the  action  is  brought,  except  when  the  action 
Is  brought  upon  a  joint  contract  or  obligation  of  two  or 
more  persons,  who  reside  in  different  counties  and  the 
summons  has  been  served  upon  the  defendant,  resident  of 
the  county,  in  which  case  the  summons  may  be  served  upon 
the  other  defendant  out  of  the  county;  and  except,  also, 
when  an  action  is  brought  against  a  party  who  has  con- 
tracted to  perform  an  obligation  at  a  particular  place,  and 
resides  in  a  different  county,  in  which  case  summons  may 
be  served  in  the  county  where  he  resides;  and  except,  also, 
where  an  action  is  brought  for  injury  to  person  or  prop- 
erty, and  the  defendant  resides  in  a  different  county,  in 
which  case  summons  may  be  served  in  the  county  where 
the  defendant  resides.  En.  March  11,  1872.  Am'd.  1873-4, 
»33;    1875-6,   99. 

Cal.   Rep.   Cit.     66,  442;    71,   556;    97,   57. 

Process  of  justices'  courts — extent  of:  Ante,  sees.  94,  106. 

§  849.  Summons,  by  whom  and  how  served  and  re- 
turned. The  summons  may  be  served  by  a  sheriff  or  con- 
stable of  any  of  the  counties  of  this  state  or  by  any  other 
person  of  the  age  of  eighteen  years  or  over  not  a  party  to 
the  action.  When  a  summons  issued  by  a  justice  of  peace 
is  to  be  served  out  of  the  county  in  which  it  is  issued  the 
summons  must  have  attached  to  it  a  certificate  under  seal 
by  the  county  clerk  of  such  county  to  the  effect  that 
the  person  issuing  the  same  was  an  acting  justice  of  the 
peace  at  the  date  of  the  summons  and  must  be  served  and 
returned  as  provided  in  title  five,  part  two  of  the  code, 
or  it  may  be  served  by  publication  and  sections  four  hun- 
dred and  thirteen  and  four  hundred  and  twelve  so  far  as 
they  relate  to  the  publication  of  summons  are  made  appli- 
cable to  justices'  courts,  the  word  justice  being  substituted 
for  the  word  judge  wherever  the  latter  word  occurs.  En. 
March  11,  1872.     Am'd.  1873-4,  407;  1891,  51;   1905,  27. 


837  COMMENCING     ACTIONS.  S  ^^ 

Cal.  Rep.  Cit.     59,  473;    59,  433;     73,  4;     138,  610. 

Prac.  Act,  sec.  542.     En.  April  29,  1851. 

Prac.  Act,  sec.  613.  En.  April  29,  1851.  Am'd.  1860, 
305;     1865-6,  407. 

Prac.  Act,  sec.  014.     En.  April  29,  1851. 

The  act  of  1875-6,  855,  relating  to  the  service  of  sum- 
mons m  justice's  court  in  San  Francisco  was  superseded 
hy  this  section. 

Publication,  service  by:    Ante,  sees.  412,  413. 

§  850.  Notice  of  hearing.  When  all  the  parties  served 
■with  process  shall  have  appeared,  or  some  of  them  have 
appeared,  and  the  remaining  defendants  have  made  de- 
fault, the  justice  must  fix  the  day  for  the  trial  of  said 
cause,  whether  the  issue  is  one  of  law  or  fact,  and  give 
notice  thereof  to  the  parties  to  the  action  who  have  ap- 
peared, but  in  case  any  of  the  parties  are  represented  by 
an  attorney,  then  to  such  attorney.  Such  notice  shall  be 
in  writing,  signed  by  the  justice,  and  substantially  in  the 
following  form    (filling  blanks  according  to  the  facts) : 

In     the    justice    court township    (or 

city,  or    city    and    county),  county,  or  city  and  county  of 

,  State  of  California    plaintiff,  vs. 

,     defendant.      To     plaintiff, 

or   attorney  for  plaintiff,  and  to    

,   defendant,    or     ,    attorney    for 

defendant. 

You  and  each  of  you  will  please  take  notice  that  the  un- 
dersigned justice  of  the  peace  before  whom  the  above- 
entitled  cause  is  pending,  has  set  for  hearing  the  demurrer 

of  ,  filed  in  said  cause  (or  has  set  the  said 

cause  for  trial,  as  the  case  may  be),  before  me  at  my  office 

in  said  township   (or  city,  or  city  and  county),    at    

o'clock   M.,  on  the    day    of     

19 

Dated    this day    of      

19 

(Signed)    

Justice  of  the  peace. 

Said  notice  shall  be  served  by  mail  or  personally.  When 
served  by  mail  the  justice  of  the  peace  shall  deposit  copies 
thereof  in  a  sealed  envelope  in  the  post  office  at  least  tea 
days  before  the  trial  or  hearing  addressed  to  each  of  the 
persons  on  whom  it    is  to  be  served  at  their  place  of  resi- 

Code   CivU   Proc.— 22. 


5  851  PLEADINGS    IN    JUSTICES'    COUKTS.  MS 

dence  and  the  postage  prepaid  thereon;  provided  that  such 
notice  shall  be  served  by  mail  only  when  the  attorney  on 
whom  service  is  to  be  made,  resides  out  of  the  county  in 
which  said  justice's  court  is  situated.  Wihen  personally 
served  said  notice  shall  be  served  at  least  five  days  before 
the  trial  or  hearin-g  on  the  persons  on  whom  it  is  to  be 
served  by  any  person  competent  and  qualified  to  serve  a 
summons  in  a  justices'  court  and  when  personally  served 
it  shall  be  served  returned  and  filed  in  like  manner  as  a 
summons.  The  judge  shall  enter  on  his  docket  the  date 
of  trial  or  hearing:  and  when  such  notice  shall  have  been* 
served  by  mail  the  justice  shall  enter  on  his  docket  the 
date  of  mailing  such  notice,  of  trial  or  hearing  and  :mch 
entry  shall  be  prima  facie  evidence  of  the  fart  of  such 
service.  The  parties  are  entitled  to  one  hour  in  which  to 
appear  after  the  time  fixed  in  said  notice,  but  are  not 
bound  to  remain  longer  than  that  time  unless  both  parties 
have  appeared  and  the  justice  being  present  is  engaged  in 
the  trial  of  another  cause.  En.  March  11.  1872.  Am'd. 
1875-6,  99;    1900-01,  598;     1905,  33. 

Cal.   Rep.   Cit.     74,  344;     74,  345;     97,  524;     97,   526;     109, 
617;    lis,  276;     118,  296;     136,  366;    138,  650. 

Time  of  trial:   Post,  sees.  873  et  seq. 

CHAPTER    III. 

PLEADINGS     IN     JUSTICES'     COURTS. 

§  Sol.  Form    of   pleadings. 

§  852.  Pleadings    in    justices'    courts. 

§  853.  Complaint    defined.  : 

§  854.  When    demurrer    to   complaint   may   be   put   In.  J 

§  855.  Answer. 

I  856.  If    the    defendant    omits   to    set   up    counterclaim. 

§  857.  When    plaintiff   may   demur   to   answer. 

§  S.58.  Proceedings    on    demurrer. 

§  859.  Amendment    of    pleadings. 

§  SCO.  Answer    or    demurrer    to    amended    pleadings. 

§  P51.     Form     of     pleadings.      Pleadings      in      justices' 

courts. 

1.  Are  not  required  to  be  in  any  particular  form,  but 
mast  be  such  a^s  to  enable  a  person  of  common  understand- 
iiiS  to  know  what  is  intended; 

^.  May,  except  the  complaint,  be  oral  or  in  writing; 

3.  Must  not  be  verified,  unless  otherwise  provided  in  this 
titia; 

4.  If  in  writing,  must  be  filed  with  the  justice; 

5.  If  oral,  an  entry  of  their  substance  must  be  made  in 
the   docket.     En.   March   11,  1872. 


32D  PLEADINGS   IN   JUSTICES'    COURTS.  §$  852-S56 

Cal.  Rep.   Cit.     5G.  525;    56,  526. 

Prac.  Act,  sec.  571.     En.  April  29,  1851- 

Cal.  Rep.  Cit.  9,  50;    20,  49. 

Prac.  Act,  sec.  572.     En.  April  29,  1851 

Subd.  3 — verified  answer:  Ante,  sec.  112,  subd.  2,  sec.  838. 

§  852.  Pleadings  in  justices'  courts.  The  pleadings 
are: 

1.  The  complaint  by  the  plaintiff; 

2.  The  demurrer  to  the  complaint; 

3.  The  answer  by  the  defendant; 

4.  The  demurrer  to  the  answer.     En.  March  11,  1872. 
Prac.  Act,  sec.  570.     En.   April  29,  1851. 

List  of  pleadin-gs — generally:   Ante,  sec.  422. 

S  853.  Complaint  defined.  The  complaint  in  justices' 
courts  IS  a  concise  statement,  in  writing,  of  the  facts  con- 
stituting the  plaintiff's  cause  of  action;  or  a  copy  of  the 
account,  note,  bill,  bond,  or  instniment  upon  which  the 
a/Ctipn  is  based.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     122,  470;    135,  51, 

Prac.  Act,  sec.  573.     En.  April  29,  185L 

Complaint — generally:   Ante,  sec.  426. 

§  854.     When  demurrer  to  complaint  may  be  put  in.    The 

defendant   may,   at  any    time  before   answering,   demur   to 
the  complaint.     En.  March  11,  1872. 

Prac.  Act,  sec.  578.    En.  April  29,  1851. 

Demurrer,  generally:   Ante,  sec.  430. 

§  855.  Answer.  The  answer  may  contain  a  denial  of 
any  or  all  of  the  material  facts  stated  in  the  complaint, 
which  the  defendant  believes  to  be  untrue,  and  also  a 
statement,  in  a  plain  and  direct  mannor,  of  any  other 
facts  constituting  a  defense  or  counterclaim,  upon  which 
an  action  might  be  brought  by  the  defendant  against  the 
plaintiff  in  a  justices'  court.     En.   March  11,  1872. 

Cal.  Rep.  Cit.     110,  265. 

Prac.  Act,  sec.  574.     En.  April  29,  1851. 

Oal.  Rep.  Cit.     17,  85;    20,  49;    30,  546. 

Answer,  generally:    Ante,  sec.  437. 

§  856.  If  the  defendant  omits  to  set  up  counterclaim. 
If  the  defendant  omit  to  set    up    a    counterclaim    in    the 


§§  857-S59  PLEADINGS    IN    JUSTICES'     COURTS.  340 

cases  mcntion'ed  in  the  last  section,  neither  he  nor  his 
assignee  can  afterward  maintain  an  action  against  the 
plaintiff  therefor.     En.   March   11,  1872. 

Cal.   Rep.   Cit.     122,  199. 

CJounteiclaira   waived — generally:    Ante,  sec.   439. 

§  857.  When  plaintiff  may  demur  to  answer.  When 
the  answer  contains  new  matter  in  avoidance,  or  consti- 
tuting a  defense  or  a  counterclaim,  the  plaintiff  may, 
at  any  time  before  tbe  trial,  demur  to  the  same  for  in- 
BufTiciency,  stating  therein  the  grounds  of  such  demurrer. 
En.  March  11,  1872. 

Demurrer  to  answer — generaily:    Ante,  sec.  443. 

§  858.     Proceedings    on    demurrer.     The   proceedings   on 

demurrer  are  as  follows: 

1.  If  the  demurrer  to  the  complaint  is  sustained,  the 
plaintiff  may,  within  such  time,  not  exceeding  two  days, 
as  the  court  allows,  amend  his  complaint; 

2.  If  the  demurrer  to  a  complaint  is  overruled,  the  de- 
fendant may  answer  forthwith; 

3.  If  the  demurrer  to  an  answer  Is  sustained,  the  de- 
fendant may  amend  his  answer  within  such  time,  not 
exceeding  two  days,  as  the  court  may  allow; 

4.  If  the  demurrer  to  an  ansv/er  is  overruled,  the  action 
must  proceed  as  if  no  demurrer  had  been  interposed.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     109.  616;     109,  617.     Subd.  1—135,  5;     135, 

6.     Subd.  2—135,  5.     Subd.  3—135,  6. 
Proceedings  on  demurrer — compare  sees.  472,  636  ante. 

§  859.  Amendment  of  pleadings.  Either  party  may,  at 
any  time  before  the  conclusion  of  the  trial,  amend  any 
pleading;  but  if  the  amendment  is  made  after  the  issue, 
and  it  appears  to  the  satisfaction  of  the  court,  by  oath, 
that  an  -adjournment  is  necessary  to  the  advei-se  party  in 
consequence  of  such  amendment,  an  adjournment  must  be 
granted.  The  court  may  also,  in  its  discretion,  when  an 
adjournment  will  by  the  amendment  be  rendered  neces- 
sary, require  as  a  condition  to  the  allowance  of  such 
amendment,  made  after  issue  joined,  the  payment  of  costs 
to  the  adverse  party,  to  be  fixed  by  the  court,  not  exceed- 
ing twenty  dollars.  The  court  may  also,  on  such  terms  as 
may  be  just,  and  on  payment  of  costs,  relieve  a  party  from 
a  judgment  by  default  taken  against  him  by  his  mistake. 


841  PROVISIONAL    REMEDIES.  5§  860,  861 

inadvertance,  surprise,  or  excusable  neglect,  but  the  ap- 
plication for  such  relief  must  be  made  within  ten  days 
after  notice  of  the  entry  of  the  judgment  and  upon  an 
affidavit  showing  good  cause  therefor.  En.  March  11,  1872. 
Am'd.  1905,  254. 

Cal.  Rep.  Cit.     74,  344;     75,  231;     75,  233;    75,  255;     97, 
525;    109,  338;    120,  514;    127,  48;     133,  320. 

Prac.  Act,  sec,  580.     En.  April  29,  1851. 

Amendment,  generally.  Ante,  sec.  473;  adjournment 
because  of;   Post,   sec.   874,   subd.   2. 

§  860.  Answer  or  demurrer  to  amended  pleadings. 
When  a  pleading  is  amended,  the  adverse  party  may 
answer  or  demur  to  it  within  such  time,  not  exceeding  two 
days,  as  the  court  may  allow.     En.  March  11,  1872. 

Time  to  plead — compare  sec.  432,  ante. 


CHAPTER  IV. 

PROVISIONAL,    REMEDIES    IN    JUSTICES'     OOURT3. 

Article    I.     Arrest   and    Bail,    §§    861-865. 
II.     Attachment,    §§    866-8C9. 
III.    Claim   and    Delivery   of   Personal   Property,    §    870. 


ARTICl^E  I. 

ARREST    AND    BAIL. 

§  S61.    Order   of  arrest   and   arrest   of   defen-Jant. 
§  862.    Affidavit  and  undertaking  for  order  of  arrest. 

S  863.     A    defendant    arrested    must    be    taken    before    the    Justice    Im- 
mediately. 
S  864.    The   officer   must   give   notice    to   the   plaintiff   of   arrest. 
(  865.     The   officer    must    detain    the    defendant. 

§  861  Order  of  arrest  and  arrest  of  defendant.  An 
order  to  arrest  the  defendant  may  be  indorsed  on  a  sum- 
mons issued  by  the  justice,  and  the  defendant  may  be 
arrested  thereon  by  the  sheriff  or  constable,  at  the  time 
of  serving  the  summons  and  brought  before  the  justice, 
and  there  detained  until  duly  discharged,  in  the  following 
cases : 

1.  In  an  action  for  the  recovery  of  money  or  damages, 
on  a  cause  of  action  arising  upon  contract,  express  or  im- 


§§  SC2,  863  PnOVISIONAL    TIKMEDIES.  ZVS 

plied,   when   the   defendant   is   about  to   depart   from   the 
state,  with  intent  to  defraud  his  creditors; 

2.  In  an  action  for  a  fine  or  penalty,  or  for  money  or 
property  embezzled  or  fraudulently  misapplied,  or  con- 
verted to  his  own  use  by  one  who  received  it  in  a  fiduciary 
capacity; 

3.  When  the  defendant  has  been  guilty  of  a  fraud  in 
contracting  the  debt  or  incurring  the  obligation  for  which 
the  action  is  brought; 

4.  When  the  defendant  has  removed,  concealed,  or 
disposed  of  his  property,  or  is  about  to  do  so,  with  intent 
to  defraud  his  creditors. 

But  no  female  can  be  arrested  in  any  action.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.    86,  71. 

Prac.  Act,  sec.   544.     En.   April   29,   1851. 

Arrest  and   bail:   Sees.   478   et  seq. 

Mesne  and  final  process  of  justices'  courts  may  be  is- 
sued to  any  part  of  the  county:    Sees.  94,  106. 

§  862.  Affidavit  and  undertaking  for  order  of  arrest. 
Before  an  order  for  an  arrest  can  be  made,  the  party  ap- 
plying must  prove  to  the  satisfaction  of  the  justice,  by  the 
affidavit  of  himself  or  some  other  person,  the  facts  upon 
which  the  application  is  founded.  The  plaintiff  must  also 
execute  and  deliver  to  tlie  justice  a  written  undertaking 
in  the  sum  of  three  hundred  dollars,  with  sufficient  sure- 
ties, to  the  effect  that  the  plaintiff  will  pay  all  costs  tliat 
may  be  adjudged  to  the  defendant,  and  all  damages  which 
he  may  sustain  by  reason  of  the  arrest,  if  the  same  be 
wrongful,  or  without  sufficient  cause,  not  exceeding  the 
sum  specified  in  the  undertaking.  En.  March  11,  1872. 
.Am'd.  1873-4,  334. 

Prac.  Act,  sec.  545.     En.  April  29,  1851. 

Affidavit    and    undertaking    for    arrest:    Compare    ante, 
sees.  481,  482. 
Qualification  of  sureties:   Post,  sec.  1057. 

§  863.  A  defendant  arrested  must  be  taken  before  the 
justice  immediately.  The  defendant,  immediately,  upon 
being  arrested,  must  be  taken  to  the  office  of  the  justice 
who  made  the  .order,  and  if  he  is  absent  or  unable  to  try 


Sl3  PROVISIONAL,   REMEDIES.  §§  864-866 

the  action,  or  if  it  appears  to  him  by  the  affidavit  of  de- 
fendant, that  he  is  a  material  witness  in  the  action,  the 
officer  must  immediately  take  the  defendant  before  another 
justice  of  the  township  or  city,  if  there  is  another,  and  if 
not,  then  before  the  justice  of  an  adjoining  township,  who 
must  take  jurisdiction  of  the  action,  and  proceed  thereon, 
as  if  the  summons  had  been  issued  and  the  order  of  arrest 
made  by  him.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     95,  74;    141,  321. 

Prac.  Act,  sec.  546.     En.  April  29,  1851. 

Prac.  Act,  sec.  550.     En.  April  29,  1851. 

§  864.  The  officer  must  give  notice  to  the  plaintiff  of 
arrest.  The  officer  making  the  arrest  must  immediately 
give  notice  thereof  to  the  plaintiff,  or  his  attorney  or 
agent,  and  indorse  on  the  summons,  and  bubscribe  a  cer- 
tificate, stating  the  time  of  serving  the  same,  the  time 
of  the  arrest,  and  of  his  giving  notice  to  the  plaintiff.  En. 
March  11,  1872. 

Prac.  Act,  sec.  547.     En.  April  29,  1851. 

§  865.  The  officer  must  detain  the  defendant.  The 
officer  making  the  arrest  must  keep  the  defendant  in 
custody  until  he  is  discharged  by  order  of  the  justice. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.     86,  71. 

Prac.  Act,  sec.  548.     En.  April  29,  185L 


ARTICLE  II. 

ATTACHMENT. 

§  S66.  Writ  of  attachment  shall  issue  upon  affidavit. 
§  867.  Undertaking  on  attachment  must  be  required. 
§  868.    Writ    of   attachment,    substance   of.     Oflicer   may    take    an   urrJer- 

taking    instead    of    levying. 
§  S69.     Certain   provisions   apply    to   all   attachments    in    justices'    courts. 

§  866.     Writ    of    attachment    shall    issue    upon    affidavit. 

A  writ  to  attach  the  property  of  the  defendant  must  be 
issued  by  the  justice  at  the  time  of,  or  after  issuing  sum- 
mons and  before  answer,  on  receiving  an  affidavit  by  or  on 
behalf  of  the  plaintiff,  showing  the  same  facts,  as  are  re- 
quired to  be  shown  by  the  affidavit  specified  in  section  fi.ve 
hundred  and  thirty-eight  of  this  code.  En.  March  11,  1872, 
Cal.  Rep.  Cit.     122,  148. 


§§  SC7,  S68  PROVISIONAL     REMEDIES.  31* 

Prac.  Act,  sec.  551.  En.  April  29,  1851.  Am'd.  1858,  154; 
ISGO,  304. 

Cal.  Rep.  Cit  34,  646. 

Prac.  Act,  sec.  552.     En.  April  29,  1851.     Am'd.  1858,  154. 

Attachment,  generally:  Ante,  sees.  537  et  soq. 

Mesne  and  final  process  of  justices'  courts  may  be  issued 
to  any  part  of  the  county:  Ante,  sees.  94,  106. 

§  867.  Undertaking  on  attachment  must  be  required. 
Before  issuing  the  writ,  the  justice  must  require  a  writton 
undertaking  on  the  part  of  the  plaintiff,  with  two  or  more 
sufficient  sureties,  in  a  sum  not  less  than  fifty,  nor  more 
than  three  hundred  dollars,  to  the  effect  that  if  the  defend- 
ant recover  judgment,  the  plaintiff  will  pay  all  costs  that 
may  be  awarded  to  the  defendant,  and  all  damages  which 
hs  may  sustain  by  reason  of  the  attachment  not  exceeding 
the  sum  specified  in  the  undertaking.     En.  March  11,  1872. 

Prac.  Act,  sec.  553.  En.  April  29,  1851.  Am'd.  1858,  154; 
1860,  304;    1871-2,  75. 

Cal.  Rep.  Cit.     34,  646. 

Undertaking  on  attachment,  generally:  Ante,  sec.  539. 

§  868.  Writ  of  attachment,  substance  of.  Officer  may 
take  an  undertaking  instead  of  levying.  The  writ  may  be 
directed  to  the  sheriff  or  any  constable  of  the  county  in 
which  such  justice  court  is  situate,  and  must  require  him 
to  attach  and  safely  keep  all  the  property  of  the  defend- 
ant within  his  county,  not  exempt  from  execution,  or  so 
much  thereof  as  may  be  sufficient  to  satisfy  the  plain- 
tiff's demand,  the  amount  of  which  must  be  stated  in 
conformity  with  the  complaint,  unless  the  defendant  giv3 
him  security,  by  the  undertaking  of  two  sufficient  sure- 
ties, in  an  amount  sufficient  to  satisfy  such  demand,  be- 
sides costs;  in  which  case,  to  take  such  undertaking. 
Several  writs  may  be  issued  at  the  same  time  to  th3 
sheriffs  of  different  counties;  provided,  that  where  a  writ 
of  attachment  issued  by  a  justice  of  the  peace  is  to  be 
served  out  of  the  county  in  which  it  was  issued,  the  writ 
of  attachment  shall  have  attached  to  it  a  certificate  under 
seal,  by  the  county  clerk  of  such  county,  to  the  effect  that 
the  person  issuing  the  same  was  an  acting  justice  of  the 
peace  of  said  county,  at  the  date  of  the  writ.  En.  Marcli 
11,  1872.     Am'd.  1905,  208. 


S45  PROVISIONAL    REMEDIES.  S§  S63,  S70 

Prac.  Act,  sec.  554.     En.  April  29,  1851. 
Contents  of  writ:  Compare  sec.  540,  ante. 

§  869.  Certain  provisions  apply  to  ail  attachments  in 
justices'  courts.  The  sections  of  this  code  from  section 
fivo  hundred  and  forty-one  to  section  five  hundred  and 
fifty-nine,  both  inclusive,  are  applicable  to  attachments 
issued  in  justices'  courts,  the  word  "constable"  being  sub- 
stituted for  the  word  "sheriff,"  whenever  the  writ  is  di- 
rected to  a  constable,  and  the  word  "justice"  being  sub- 
stituted for  the  word  "judge."    En.  March  11,  1872. 

Prac.  Act,  see.  555.     En.  April  29,  1851. 

§§  541-559.  Sec.  541,  property  attachable.  Sees.  542, 
543,  property,  how  sheriff  attaches.  Sec.  544,  garnishee's 
liability.  Sec.  545,  examination  of  defendant  and  gar- 
nishee. Sec.  546,  inventory,  return,  etc.  Sec.  547,  por- 
ishables.  Sec.  548,  other  property,  immediate  sale  of. 
Sec.  549,  claim  by  third  person.  Sec.  550,  realization  of 
attached  property  after  judgment  for  plaintiff.  Sec.  551, 
collecting  balance  by  sheriff.  Sec.  552,  proceedings  if 
execution  unsatisfied.  Sec.  553,  eft'ect  of  judgment  tor  de- 
fendant Sees.  554-558,  discharge  of  attachment.  Sec.  559, 
sheriff's  return.     Releasing  attachment. 


ARTICLE  III. 

CLAIM    AND    DELIVERY    OF    PERSONAL    PROPERTY. 

§  870.     How    claim    and    delivery    enforced. 

§  870.  How  claim  and  delivery  enforced.  In  an  action 
to  recover  possession  of  personal  property,  the  plaintiff 
may,  at  the  time  of  issuing  summons,  or  at  any  time 
thereafter  before  answer,  claim  the  delivery  of  such  prop- 
erty to  him;  and  the  sections  of  this  code,  from  section 
five  hundred  and  ten  to  section  five  hundred  and  twenty- 
one,  both  inclusive,  are  applicable  to  such  claim  when 
made  in  justices'  courts,  the  powers  therein  given  and 
duties  imposed  on  sheriffs  being  extended  to  constables, 
and  the  word  "justice"  substituted  for  "judge."  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     106,  351. 

Prac.  Act,  sec.  556.     En.  April  29,  1851. 

Prac.  Act,  sec.  557.     En.  April  29,  1851. 


S  871  JUDGMENT    BT    DBFAUX.T.  3« 

Prac.  Act,  sec.  558.  En.  April  29,  1851. 

Prac.  Act,  sec.  559.  En.  April  29,  1851. 

Prac.  Act,  sec.  560.  En.  April  29,  1851. 

Prac.  Act,  sec.  561.  En.  April  29,  1851. 

Prac.  Act,  sec.  562.  En.  April  29,  1851. 

Prac.  Act,  sec.  563.  En.  April  29,  1851. 

Prac.  Act,  sec.  564.  En.  April  29,  1851. 

Prac.  Act,  sec.  565.  En.  April  29,  1851. 

Prac.  Act,  sec.  566.  En.  April  29,  1851. 

Prac.  Act,  sec.  568.  En.  April  29,  1851. 

Prac.  Act,  sec.  569.  En.  April  29,  1851. 

Prac.  Act,  sec.  592.  En.  April  29,  1851. 

Claim  and  delivery:  Sees.  509  et  seq. 

§§  510-521.  Sec.  510,  aflBdavit  for  claim  and  delivery. 
Sec.  511,  requisition  for  sheriff  to  take  property  claimed. 
Sec.  512,  undertaking  by  plaintiff.  Sec.  513,  exception  to 
sureties  by  defendant.  Sec.  514,  defendant  claiming  re- 
delivery. Sec.  515,  justification  of  defendant's  sureties. 
Sec.  516,  qualifications  of  sureties.  Sec.  517,  breaking 
open  building,  etc.  Sec.  518,  property,  how  kept.  Sec. 
519,  claim  by  third  person.  Sec.  520,  sheriff  to  file  notice, 
affidavit,  etc.  Sec  521  (Rep.  March  24;  took  effect  July 
L,  1874). 


CHAPTER  V. 

JtJTWJMENT   BT   DEPATJLT   IN   JUSTICES'    COURTS. 

§  871.    Judgment   when   defendant  fails  to  appear. 
S  872.    Jtrdgment   against   defendant   on   demurrer. 

§  871.     Judgment    when    defendant    fails    to    appeaf.     K 

the  defendant  fail  to  appear,  and  to  answer  or  dems? 
within  the  time  specified  in  the  summons,  then,  upon 
proof  of  service  of  summons,  the  following  proceedings 
must  be  had: 

1.  If  the  action  is  based  upon  a  contract,  and  is  for  the 
recovery  of  money,  or  damages  only,  the  court  must  render 
judgment  in  favor  of  plaintiff  for  the  sum  specified  in  the 
summons. 

2.  In  all  other  actions  the  court  must  hear  the  evidence 
offered  by  the  plaintiff,  and  must  render  judgment  in  bis 


347  TRIAL     AND     POSTPONEMENTS.  §§  872,  874 

favor  for  such  sum  (not  exceeding  the  amount  stated  in 
the  summons)  as  appears  by  such  evidence  to  be  just.  En. 
March  11,  1872.     Am'd.  1875-6,  100;   1880,  113. 

Cal.    Rep.   Cit.     59,    493;    74,   344;    108,   363.     Subd.   1—66, 
638;  135,  5. 

Default  judgment,  generally:    Ante,  sec.   585. 

§  872.     Judgment    against    defendant  on    demurrer.     In 

the  following  cases  the  same  proceedings  must  be  had,  and 
judgment  must  be  rendered  in  like  manner,  as  if  the 
defendant  had  failed  to  appear  and  answer  or  demur: 

If  the  complaint  has  been  amended,  and  the  defend- 
ant fails  to  answer  it  as  amended,  within  the  time  allowed 
by  the  court; 

2.  If  the  -demurrer  to  the  complaint  Is  overruled,  and 
the  defendant  fails'  to  answer  at  once; 

3.  If  the  demurrer  to  the  answer  is  sustained,  and  the 
defendant  fails  to  amend  the  answer  within  the  time 
allowed  by  the  court.     En.  March  11,  1872. 

Cal.  Rep.  Cit.    109,  617.     Subd.  2—135,  5. 

Compare  sec.  858,  ante. 


CHAPTER  VI. 

TIMB   OF   TBIAL   AND    POSTPONEMENTS   IN   JUSTICES'    COURTB. 

I  873.     Time   when   trial   must  be   commenced. 
5  874.    When   court   may,    of   Its   own   motion,    postpone   trial. 
§  875.     Postponement    by    consent. 

§  876.     Postponement    upon    application    of    a    party. 

§  877.    No   continuance   for   more    than    ten    days   to  be   granted,    unless 
upon    filing   of   undertaking. 

§  873.  Time  when  trial  must  be  commenced.  Unless 
postponed  as  provided  in  this  chapter,  or  unless  trans- 
ferred no  another  court,  the  trial  of  the  action  must  com- 
mence at  the  expiration  of  one  hour  from  the  time  speci- 
fied In  the  notice  mentioned  in  section  850,  and  the  tr'al 
must  be  continued  without  adjournment  for  Jiore  than 
twenty-four  hours  at  any  one  time,  until  all  the  issues 
therein  are  disposed  of.  En.  March  11,  1872.  Am'd. 
1875-6,  100. 

Cal.  Rep.  Cit.     92,  432;   97,  526;   118,  276. 


3g  874-876  TRIAL    AND    POSTPONEMENTS.  S'J 

§  874.  When  court  may,  of  its  own  motion,  postpone 
trial.  The  court  may,  of  its  own  motion,  postpone  the 
trial: 

1.  For  not  exceeding  one  day,  if,  at  the  time  fixed  by 
law  or  by  an  order  of  the  court  for  the  trial,  the  court  is 
engaged  in  the  trial  of  another  action; 

2.  For  not  exceeding  two  days,  if,  by  an  amendment  of 
the  pleadings,  or  the  allowance  of  time  to  make  such 
amendment  or  to  plead,  a  postponement  is  rendered  neces- 
sary; 

3.  For  not  exceeding  three  days,  if  the  trial  is  upon 
issues  of  fact,  and  a  jury  has  been  demanded.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     Subd.  2—135,  6. 

Amendment  of  pleadings,  etc.:   Ante,  s<©cs.  858,  859. 

§  875.  Postponement  by  consent.  The  court  may,  by 
consent  of  the  parties,  given  in  writing  or  in  open  court, 
postpone  the  trial  to  a  time  agreed  upon  by  the  parties. 
En.  March  11,  1872. 

Prac.  Act,  sec.  583.     En.  April  29,  1851.    Am'd.  1854,  68. 

Prac.  Act,  sec.  584.    En.  April  29,  1851.    Am'd.  1854,  68. 

§  876.  Postponement  upon  application  of  a  party.  The 
trial  may  be  postponed  upon  the  application  of  either 
party,  for  a  period  not  exceeding  four  months: 

1.  The  party  making  the  application  must  prove,  by  his 
own  oath  or  otherwise,  that  he  cannot,  for  want  of 
material  testimony,  which  he  expects  to  procure,  safely 
proceed  to  trial,  and  must  show  in  what  respect  the  testi- 
mony expected  is  material,  and  that  he  has  used  due  dili- 
gence to  procure  it,  and  has  been  unable  to  do  so; 

2.  If  the  application  is  on  the  part  of  the  plaintiff,  and 
the  defendant  is  under  arrest,  a  postponement  for  more 
than  three  hours  discharges  the  defendant  from  custody, 
but  the  action  may  proceed,  notwithstanding,  and  the  de- 
fendant is  subject  to  arrest  on  execution,  in  the  same  man- 
ner as  if  he  had  not  been  discharged; 

3.  If  the  application  is  on  the  part  of  a  defendant  under 
arrest,  before  it  can  be  granted  he  must  execute  an  under- 
taking, with  two  or  more  suflBcient  sureties,  to  be  approved 
by,  and  in  a  sum  to  be  fixed  by  the  justice,  to  the  effect 


349  TRIAL    AND    POSTPONEMENTS.  §    877 

that  he  wrll  render  himself  amenable  to  the  process  of  the 
court  during  the  pendency  of  the  action,  and  to  such  as  may 
be  issued  to  enforce  the  judgment  therein;  or  that  the  sure- 
ties will  pay  to  the  plaintiff  the  amount  of  any  judgment 
which  he  may  recover  in  the  action,  not  exceeding  the  amount 
specified  in  the  undertaking.  On  filing  the  undertaking  speci- 
fied in  this  subdivision,  the  justice  must  order  the  defendant 
to  be  discharged  from  custody; 

4.  The  party  making  the  application  must,  if  required  by 
the  adverse  party,  consent  that  the  testimony  of  any 
witness  of  such  adverse  party,  who  is  in  attendance,  may 
be  then  taken  by  deposition  before  the  justice,  and  that 
the  testimony  so  taken  may  be  read  on  the  trial,  with  the 
same  effec",  and  subject  to  the  same  objections,  as  if  the 
witness  was  produced;  but  the  court  may  require  the  party 
making  the  application  to  state,  upon  affidavit,  the  evi- 
dence which  he  expects  to  obtain;  and  if  the  adverse  party 
thereupon  ndmit  that  such  evidence  would  be  given  and  that 
it  be  considered  as  actually  given  on  the  trial,  or  offered  and 
overruled  as  improper,  the  trial  must  not  be  postponed.  En. 
March  11,  1872. 

Postponement,  generally:  Ante,  sec.  595;  costs  of:  Post, 
sec.  1029. 

Arrest  and  bail:  Ante,  sees.  478  et  seq. 

§  877.  No  continuance  for  more  than  ten  days  to  be 
granted,  aniess  upon  filing  of  undertaking.  No  adjourn- 
ment must,  unless  by  consent,  be  granted  for  a  period 
longer  than  ten  days,  upon  the  application  of  either  party, 
except  upon  condition  that  such  party  file  an  undertaking, 
in  an  amount  fixed  by  the  justice,  with  two  sureties,  to 
be  approved  by  the  justice,  to  the  effect  that  they  will 
pay  to  the  opposite  party  the  amount  of  any  judgment 
which  may  be  recovered  against  the  party  applying,  not 
exceeding  the  sum  specified  in  the  undertaking.  En.  March 
11,  1872. 

Prac.  Act,  sec.  585.     En.  April  29,  1851. 


§5  &TS-SS2  TRIALS   IN   JUSTICES'    COURTS.  K» 

CHAPTER   VTI. 

TRIALS    IN   JUSTICES'    COURTS. 

5  878.     Issne    defined,    and   the    different   kinds. 

§  879.     Issue    of    law,    how    raised. 

§  880.     Issue  of    fact,    how    raised. 

§  SSL     Issue   of    law,    how    tried. 

§  S82.     Issue    of    fact,    how    tried. 

§  883.    Jury,    how    waived. 

§  884.     Either   jmrty   falling   to   appear,    trial   may   proceed   at   request   of 

other    party. 
5  8S5.     Challenges   to   jurors. 

§  886.     Manner    of    pleading    a    written    instrument. 
S  8S7.     If  a   copy    of  an    Instrument    be   filed,    signatures   will   be   deemed 

admitted,    unless   denied   under   oath. 

§  878.  Issue  defined,  and  the  different  kinds.  Issues 
arise  upon  the  pleadings  when  a  fact  or  conclusion  of  law 
is  maintained  by  the  one  party,  and  is  controverted  by 
the   other.     They  are  of  two  kinds: 

1.  Of   law;    and, 

2.  Of   fact.     En.    March    11,    1S72. 

Compare  this  and  the  next  two  sections  with  sections 
58S-590,   ante. 

§  879.  Issue  of  law,  how  raised.  An  issue  of  law  arises 
upon  a  demurrer  to  the  complaint  or  answer,  or  to  some 
part  thereof.     En.   March  11,   1872. 

Same  as  sec.   589,   ante. 

§  880.  Issue  of  fact,  how  raised.  An  Issue  of  fact 
arises: 

1.  Upon  a  material  allegation  in  the  complaint  contro- 
verted  by  the   answer;    and, 

2.  Upon  new  mattter  in  the  answer,  except  an  issue  ot 
law  is  joined   thereon.     En.   March   11,  1872. 

Same  as  sec.   590,  ante. 

§  881.     Issue  of  law,   how  tried.     An  issue  of  law  must 
be  tried  by  the  court.     En.  Mai'ch  11,  1872, 
Compare  sec.  591,  ante. 

§  882.  Issue  of  fact,  how  tried.  An  issue  of  fact  must 
be  tried  by  a  jury,  unless  a  jury  is  waived,  in  which  case 
it  must  be  tried  by  the  court.     En.  March  11,  1872. 

Prac.  Act,  sec.  593.     En.  April  29,  1851. 

Compare  sec.  592,  ante.  , 


351  TRIALS   IN   JUSTICES'    COURTS.  §§   883-837 

§  883.     Jury,  how  waived.     A  jury  may  be  waived: 

1.  By  consent  of  parties,  entered  in  the  docket; 

2.  By  a  failure  of  either  party  to  demand  a  jury  before 
the  commencement  of  the  trial  of  an  issue  of  fact; 

3.  By  the  failure  of  either  party  to  appear  at  the  time 
fixed  for  the  trial  of  an  issue  of  fact.     En.  March  11,  1872. 

Prac.  Act,  sec.  587.     En.  April  29,  1851. 

Waiver  of  jury:  Compare  sec.  631,  ante. 

§  884.     Either  party  falling  to  appear,  trial  may  proceed 

at  request  of  other  party.  If  either  party  fails  to  appear  at 
the  time  fixed  for  trial,  the  trial  may  proceed  at  the  request 
of  the  adverse  party.     En.  March  11,  1872. 

Cal.  Eep.  Cit.     63,  436. 

Compare  sec.  594,  ante. 

§  885.  Challenges  to  jurors.  The  challenges  are  either 
peremptory  or  for  cause.  Each  party  is  entitled  to  three 
peremptory  challenges.  Either  party  may  challenge  for 
cause  on  any  grounds  set  forth  in  section  six  hundred  and 
two.  Challenges  for  cause  must  be  tried  by  the  justice. 
En.  March  11,  1872. 

Prac.  Act,  sec.   590.    En.  April  29,   1851. 

Challenges:  Compare  sees.   601,   602,   ante. 

§  886.  Manner  of  pleading  a  written  instrument.  When 
the  cause  of  action  or  counterclaim  arises  upon  an  account 
or  instrument  for  the  payment  of  money  only,  the  court, 
at  any  time  before  the  trial,  iL-ay,  by  an  order  under  his 
hand,  require  the  original  to  be  exhibited  to  the  Inspection 
of,  and  a  copy  to  be  furnished  to,  the  adverse  party,  at 
such  time  as  may  be  fixed  in  the  order;  or,  if  such  order 
is  not  obeyed,  the  account  or  instrument  cannot  be  given 
in  evidence.     En.   March   11,   1S72. 

Prac.  Act,  sec.  576.     En.  April  29,  1851. 

Order  for  inspection:   Post,  sec.  1000. 

§  887.  If  a  copy  of  an  instrument  be  filed,  signatures 
will  be  deemed  admitted,  unless  denied  under  oath.  If 
the  plaintiff  annex  to  his  complaint,  or  file  with  the 
justice  at  the  time  of  issuing  the  summons,  the  original 
or  a  copy  of  the  promissory  note,  bill  of  exchange,  or  other 


§§    889,    890  JUDGMENTS.  852 

written  obligation  for  the  payment  of  money,  upon  which 
the  action  is  brought,  the  defendant  is  deemed  to  admit  the 
genuineness  of  the  signatures  of  the  makers,  indorsers,  or 
assignors  thereof,  unless  he  specifically  deny  the  same  in 
his  answer,  and  verify  the  answer  by  his  oath.  En.  March 
11,  1872. 

Prac.  Act,  sec.  577.     En.  April  29,  1851.     Am'd.  1854,  68. 

Compare  sees.  447,  448,  853,  ante. 

CHAPTER  Vni. 

JUDGMENTS     (OTHER    THAN    BY    DEFAULT)     IN     JUSTICES' 
COURTS. 

9   889.     Judgment  by  confession. 

S  890.  Judgment  of  dismissal  entered  in  certain  cases  witout  preju- 
dice. 

§    891.      Judgment  upon  verdict. 

S   892.     Judgment    after   trial   by   the    court. 

§   893.     Judgment  when  the  defendant  is  subject  to  arrest. 

i  894.  If  the  sum  found  due  exceeds  the  jurisdiction  of  the  justice, 
the  exoess  may  be  remitted. 

§    895.      Offer  to  compromise  before  trial. 

5    896.      Costs  may  be  included  in  the  judgment. 

§    897.      Abstract  of  judgment. 

§    898.     Abstract  may  be  filed  and  docketed  in  superior  court. 

§    899.      Effect  of  decketing. 

S  900.  Judgment  not  a  lien  unless  abstract  is  recorded  in  the  record- 
er's office. 

§  889.  Judgment  by  confession.  Judgments  upon  con- 
fession may  be  entered  up  in  any  justices'  court  specified 
in  the  confession.     En,  March  11,  1872. 

Prac.  Acr,  sec.  536.     En.  April  29,  1851, 

Confession  of  judgment,  generally:  Post,  sees.  1132-1135; 
jurisdiction:  Ante,  sec.  112,  subd.  6. 

§  890.  Judgment  of  dismissal  entered  in  certain  cases 
without  prejudice.  Judgment  that  the  action  be  dismissed, 
without  prejudice  to  a  new  action,  may  be  entered  with 
costs,  in  the  following  cases: 

1.  When  the  plaintiff  voluntarily  dismisses  the  action  be- 
fore it  is  finally  submitted;  or  fails  to  prosecute  the  action 
to  judgment  with  reasonable  diligence;  provided  a  counter- 
claim has  not  been  made,  or  afl&rmative  relief  sought  by  the 
cross-complaint  or  answer  of  the  defendant;  if  a  provisional 
remedy  has  been  allowed,  the  undertaking  must  thereupon  be 
delivered  by  the  justice  of  the  peace  to  the  defendant  who 
may  have  his  action  thereon; 

2.  When  he  fails  to  appear  at  the  time  specified  in  the 
summons,  or  at  the  time  to  which  the  action  has  been  post- 
poned, or  within  one  hour  thereafter; 


353  JUDGMENTS.  §§    891-894 

3.  When,  after  a  demurrer  to  the  complaint  has  been  sus- 
tained, the  plaintiff  fails  to  amend  it  within  the  time  al- 
lowed by  the  court; 

4.  When  the  action  is  brought  in  the  wrong  county,  or 
township,    or    city.     En.    March    11,    1872.     Am'd.    1905,   44. 

Cal.  Eep.  Cit.  106,  592;  106,  593.  Subd.  3—97,  522.  Subd. 
4—141,  267. 

Prac.  Act,  sec.  586.  En.  April  29,  1851.  Am'd.  1867-8, 
552. 

Prac.  Act,  sec.  591.     En.  April  29,   1851. 
Dismissal:   Compare  sec.  581,  ante. 

§  891.  Judgment  upon  verdict.  When  a  trial  by  jury 
has  been  had,  judgment  must  be  entered  by  the  justice,  at 
once,  in  conformity  with  the  verdict.     En.  March   11,  1872. 

Cal.  Eep.  Cit.  68,  411;  102,  180. 

Prac.  Act,  sec.  594.  En.  April  29,  1851.  Am'd.  1854,  68; 
1863,   690. 

Entry  of  judgment,  generally:  Ante,  sec.  664;  as  affect- 
ing appeals:  Post,  sec.  939. 

§  892.  Judgment  after  trial  by  the  court.  When  the 
trial  is  by  the  court,  judgment  must  be  entered  at  the 
close   of  the   trial.     En.   March    11,    1872, 

Cal.  Eep.  Cit.  88,  559;  97,  525;  102,  180;  118,  276;  133, 
819. 

§  893.  Judgment  when  the  defendant  Is  subject  to  ar- 
rest. The  judgment  in  justices'  courts  must  be  entered 
Bubstanti;i!ly  in  the  form  required  by  section  six  hundred 
and  sixty-seven  of  this  code.  When  the  judgment  is  ren- 
dered in  a  case  where  the  defendant  is  subject  to  arrest 
and  imprisonment  thereon,  the  fact  that  the  defendant 
is  so  subject,  must  be  stated  in  the  judgment.  En.  March 
11,  1872.     Am'd.  1873-4,  334. 

Prac.  Act,  sec.  597.     En.  April  29,  1851. 

Final  process  may  be  issued  to  any  part  of  the  county: 
Ante,  sees.  94,  106. 

§  894.    If  the  sum  found  due  exceeds  the  jurisdiction  of 
the     justice,    the     excess     may     be     remitted.     When    the 
amount    found    due    to    either    party    exceeds    the    sum    for 
Code   Civil  Proo. — 28 


i§   895-897  JUDGMENTS.  354 

which  the  justice  is  authorized  to  enter  judgment,  such 
party  may  remit  the  excess,  and  judgment  may  be  rendered 
for   the   residue.     En.   March   11,   1872. 

Cal.  Eep.  Cit.  147,  i07. 

Prac.  Act,  sec.  595.     En.  April  29,  1851. 

Limit,  three  hundred  dollars:   Ante,  sec.   112. 

§  895.  Offer  to  compromise  before  trial.  If  the  defend- 
ant, at  any  time  before  the  trial,  offer,  in  writing,  to  allow 
judgment  to  be  taken  against  him  for  a  specified  sum,  the 
plaintia  m'iy  immediately  have  judgment  therefor,  with 
the  costs  ttien  accrued;  but  if  he  do  not  accept  such  offer 
betcvre  the  trial,  and  fail  to  recover  in  the  action  a  sum  m 
excess  of  the  offer,  he  cannot  recover  costs,  but  costs  must 
be  adjudged  against  him,  and,  if  he  recover,  be  deducted 
from  Ms  recovery.  The  offer  and  failure  to  accept  it  can- 
not b<3  given  in  evidence  nor  affect  the  recovery,  other- 
wise tban  as  to  costs.     En.  March  11,  1872.    Am'd.  1877-8, 

i(rs. 

Prsks.  Act,   sec.  596.     En.  April  29,  1851. 
Offer  to  compromise:   Compare  sec.   997,  post. 

§  8&C3.  Costs  may  be  included  in  the  judgment.  The 
justice  must  tax  and  include  in  the  judgment  the  costs  al- 
lowed by  law  to  the  prevailing  party.     En.  March  11,  1872. 

Cal.   Rep.   Cit.     102,   180. 

Prac.  Act,  sec.  598.     La.  April  25,  1851. 

§  897.  Abstra-2t  of  judgment.  The  justice,  on  the  de- 
mand of  a  party  in  whose  favor  judgment  is  rendered, 
must  give  him  an  abstract  of  the  judgment  in  substantially 
the  following  form  (filling  blanks  according  to  the  facts) : 

State  of  California,  county,  (or  city  and  county). 

• ,  plaintiff,  v.  ,  defendant.     In  justices'   court, 

before  ,  justice  of  the  peace,  township    (or 

city,  or  city  and  county), ,  18 —   (inserting  date  of 

abstract).     Judgment  entered  for  plaintiff   (or  defendant), 

for  ^ ,  on  the  day  of  .     I  certify  that  the 

foregoing  is  a  correct  abstract  of  a  judgment  rendered  in 
said  action  in  my  court — or  (as  the  case  may  be)   in  the 

court  of  ,  justice  of  the  peace,  as  appears   by  his 

docket,  now  in  my  possession,  as  his  successor  in  ofRce. 

' ,  Justice  of  the  Peace.    En.  March  11,  1872. 

Am'd.    1880,   19. 

Cal.  Rep.  Cit.  52,  401. 


855  EXECUTIONS.  §§    898-900 

Prac.  Act,  sec.  599.     En.  April  29,  1851.     Am'd.  1854,  69. 
Cal.  Rep.  Cit.  26,  156;  27,  371;  52,  402. 

§  898.  Abstract  may  "be  filed  and  docketed  in  superior 
court.  The  abstract  maj  be  filed  in  the  office  of  the  county 
clerk  of  the  county  in  which  the  judgment  was  rendered, 
and  the  judgment  docketed  in  the  judgment  docket  of  the 
superior  court  thereof.  The  time  of  the  receipt  of  the 
abstract  by  the  clerk  must  be  noted  by  him  thereon,  and 
entered  in  the  docket.  En.  March  11,  1872.  Am'd.  1880, 
20. 

Docketing,  generally:  Ante,  sec.  671. 
Recording  transcript:  Ante,  sec.  674. 

§  899.     Effect  of  docketing.     From  the  time  of  docketing 

in  the  county  clerk's  office,  execution  may  be  issued  there- 
on by  the  county  clerk  to  the  sheriff  of  any  county  in  the 
state,  other  than  the  county  in  which  the  judgment  was 
rendered,  in  the  same  manner  and  with  like  effect  as  if 
issued  on  a  judgment  of  the  superior  court.  En.  March  11, 
1872.     Am'd.  1880,  20. 

Cal.  Eep.  Cit.  74,  107. 

Execution,  generally:  Ante,  sees.  681  et  seq. 
•Docketing:   Ante,  sec.   671. 
Eecording:   Ante,  sec.  674. 

§  900.  Judgment  not  a  lien  unless  abstract  is  recorded 
in  the  recorder's  office.  A  judgment  rendered  in  a  jus- 
tice 's  court  creates  no  lien  upon  any  lands  of  the  defend- 
ant, unless  such  an  abstract  is  filed  in  the  office  of  the  re- 
corder of  the  county  in  which  the  lands  are  situated. 
When  so  filed,  and  from  the  time  of  filing,  the  judgment 
becomes  a  lien  upon  all  the  real  property  of  the  judgment 
debtor,  not  exempt  from  execution,  i^i  such  county,  owned 
by  him  at  the  time,  or  which  he  may  afterwards,  and  be- 
fore the  lien  expires,  acquire.  The  hen  continues  for  two 
years,  unless  the  judgment  be  previously  satisfied.  En. 
March  11,  1872.     Am'd.  1880,  114. 

Cal.  Rep.  Cit.  52,  401;  111,  486. 

Lien,    extent    and    duration    of:    Compare    sec.    674,    ante. 


Si)    U 01  003  JUDGMENTS.  856 


CHAPTER  IX. 

APPEALS  TO   SUPREME   COURT, 
i   901.     Execution  may  issue    at  Any  time  within  five   years. 
§    902.      Execution,    contents    of. 
S    903.      Renewal   of  execution. 
(   904.     Duty    of    officer    receiving    execution. 
S   905.     Proceedings   supplementary  to   execution. 

§  901.  Execution  may  Issue  at  any  time  within  five 
years.  Execution  for  the  enforcement  of  a  judgment  of  a 
justice's  court  may  be  issued  by  the  justice  who  entered 
the  judgment,  or  his  successor  in  office,  on  the  application 
of  the  party  entitled  thereto,  at  any  time  within  five  years 
from  the  entry  of  judgment.     En.  March  11,  1872. 

Cal.  Eep.  Cit.  55,  533. 

Prac.   Act,   sec.   600.     En.   April   29,   1851. 

Cal.  Rep.  Cit.  8,  513;   26,   157. 

After  five  years,  generally:  Sec.  685. 
Execution,  generally:   Sees.  681   et  seq. 
Final  process  may  be  issued  to  any  part  of  the   county: 
Ante,  sees.  94,   106. 

§  902.  Execution,  contents  of.  The  execution  must  be 
directed  to  the  sheriff  or  to  a  constable  of  the  county, 
and  must  be  subscribed  by  the  justice  and  bear  date  the 
day  of  its  delivery  to  the  officer.  It  must  intelligibly  refer 
to  the  judgment,  by  stating  the  names  of  the  parties,  and 
the  name  of  the  justice  before  whom,  and  of  the  county 
and  the  township  or  city  where,  and  the  time  when,  it  was 
rendered;  the  amount  of  judgment,  if  it  be  for  money; 
and,  if  less  than  the  whole  is  due,  the  true  amount  due 
thereon.  It  must  contain,  in  like  cases,  similar  directions 
to  the  sheriff  or  constable,  as  are  required  by  the  provi- 
sions of  title  nine,  part  two,  of  this  code,  in  an  execution 
to    the    sheriff.     En.   March   11,   1872. 

Cal.   Rep.   Cit.   138,  647;    138,   648;    138,  649. 

Prac.  Act,  sec.  601.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  82,  188. 

Compare  sees.  681  et  seq. 

§  903.  Renewal  of  execution.  An  execution  may,  at 
the    request   of   the   judgment    creditor,    be    renewed    before 


357  CONTEMPTS.  §§  904-»0B 

the  expiration  of  the  time  fixed  for  its  return,  by  the  word 
"renewed,"  written  thereon,  with  the  date  tliereof,  and 
subscribed  by  the  justice.  Such  renewal  has  the  effect 
of  an  original  issue,  and  may  be  repeated  as  often  as  nec- 
essary. If  an  execution'  is  returned  unsatisfied,  another 
may  be  afterwaid  issued.     En.  March  11,  1872. 

Cal.   Rep.  Cit.     107,  390. 

§  904.     Duty  of  officer  receiving  execution.     The  sheriff 


Execution  of  writ:  Compare,  ante,  sees.  691  et  seq.;  and 
generally:   See  sees.  688  et  seq,  ante. 

§  905,     Proceedings    Bupplementary    to    execution.     The 

sections  of  this  code,  from  seven  hundred  and  fourteen  to 
seven  hundred  and  twenty-one,  both  inclusive,  are  ap- 
plicable to  justices'  courts,  the  word  "constable"  being 
substituted,  to  that  end,  for  the  word  "sheriff,"  and  the 
word  "justice"  for  the  word  "judge."    En.  March  11,  1872. 

Cal.  Rep.  Cit.    47,  132;    133,  317. 

Proceedings  supplementary  to  execution:  Ante,  sees. 
714-72L 

CHAPTER  X. 

CONTBTMPTa    IN     JUSTICES'     CXJURTflk 

5  906.  Contempts   a  Justice   may   punish   for. 

§  907.  Proceedlnga    for   contempts. 

§  908.  San.e. 

§  909.  Punishments    for    contempts. 

5  910.  The  conviction   must  be  entered  In  the  docket. 

§  906.  Coritempts  a  justice  may  punish  for.  A  justice 
may  punish  as  for  contempt,  persons  guilty  of  the  follow- 
ing acts,  and  no  other: 

L,  Disorderly,     contemptuous,    or    insolent    behavior    to- 


§§  907-909  CONTEMPTS.  8&» 

wards  (.lie  Justice  while  holding  the  court,  tending  to  in- 
terrupt the  due  course  of  a  trial  or  other  judicial  proceed- 
ing; 

2.  A  breach  of  the  peace,  boisterous  conduct,  or  violent 
disturbance  in  the  presence  of  the  justice,  or  in  the  im- 
mediate vicinity  of  the  court  held  by  him,  tending  to  in- 
terrupt the  'due  course  of  a  trial  or  other  judicial  proceed- 
ing; 

3.  Disobedience  or  resistance  to  the  execution  of  a  law- 
ful order  or  process,  made  or  Issued  by  him; 

4.  Disobedience  to  a  subpoena  duly  served,  or  refusing 
to  be  sworn  or  to  answer  as  a  witness; 

5.  Rescuing  any  person  or  property  In  the  custody  of 
an  officer  by  virtue  of  an  order  or  process  of  the  court 
held  by  him.    En.  March  11,  1872. 

Prac.  Act,  sec.  616.     En.  April  29,  1851. 
Contempts,  generally:    Post,  sees.  1209  et  seq. 
Courts    and    Judicial  officers,  powers  of:    Ante,  sec.   128, 
177-179. 

§  907.  Proceedings  for  contempts.  When  a  contempt  is 
committed  in  the  immediate  view  and  presence  of  the 
Justice,  It  may  be  punished  summarily;  to  that  end  an 
order  must  be  ma-de  reciting  the  facts^  as  they  occurred, 
and  adjudging  that  the  person  proceeded  against  is  there- 
by guilty  of  contempt,  and  that  he  be  punished  as  therein 
prescribed.    En.  March  11,  1872. 

Prac.   Act,  sec.   617.    En.  April  29,  1851. 

Compare  sec.   1211,   post. 

§  908.  Same.  "^Tien  the  contempt  Is. not  committed  In 
the  immediate  view  and  presence  of  the  justice,  a  war- 
rant of  arrest  may  be  issued  by  such  justice,  on  which  the 
person  so  guilty  may  be  arrested  and  brought  before  the 
Justice  immediately,  when  an  opportunity  to  be  heard  In 
his  defense,  or  excuse,  must  be  given.  The  justice  may, 
thereupon,  discharge  him,  or  may  convict  him  of  the  of- 
fense.    En.  March  11,  1872. 

Compaie  sees.  1212  et  seq.,  post. 

§  909.  Punishments  for  contempts.  A  justice  may  pun- 
ish for  contempts  by  fine  or  imprisonment,  or  both;  such 
fine  not  to  exceed  in  any  case  one  hundred  dollars,  and 
such  imprisonment  one  day.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     47,  132;    47,  133. 


359  DOCKETS.  8S  «10.  3H 

§  910.     The   conviction    must   be   entered   In   the   ciocket. 

The  conviction,  spvcoifying  particularly  the  offense  and 
the  judgment  thereon,  must  be  entered  by  the  justice  la 
his  docket.     En.  March  11,  1872. 

Prac.  Act,  sec.  618.    En.  April  29,  1851. 


CHAPTER  XI. 

DOCKETS    OF    JUSTICES. 

§  911.     Docket,    what    to    contain. 

§  912.     EiitiUs    therein    prima    lacie   evidence   of    the    fact. 

§  913.    An   Index   to   the  docket   must   be   kept. 

§  914.    Dockets    must    be    delivered    by    justice    to    hla    successor,    or   to 

county    clerk. 
I  915.    Proceedings  when  office  becomes  vacant,   and   before  a  successor 

is    appointed. 
3  916.    A  justice  may  issue  execution  or  other  process  upon  the  docket 

oi;   his   predecessor. 
§  917.    Justice    Is    successor    of   prior   holder. 
8  918.    Designation     of     succeeding    justice. 

§  911.  Docket,  what  to  contain.  Every  justice  must 
keep  a  book,  denominated  a  "docket,"  in  which  he  must 
enter: 

1.  The  title  of  every  action  or  proceeding. 

2.  The  object  of  the  action  or  proceeding;  and  If  a  sum 
of  money  be  claimed,  the  amount  thereof. 

8.  The  date  of  the  summons,  and  the  time  of  Its  return; 
and  if  an  order  to  arrest  the  defendant  be  made,  or  a  writ 
of  attachment  be  issued,  a  statement  of  the  fact. 

4.  The  time  when  the  parties,  or  either  of  them,  appear, 
or  their  nonappearance.  If  default  be  made;  a  irinuts  cf 
the  pleadings  and  motions;  if  in  writing,  r2f?rring  to 
them;  if  not  in  writing,  a  concise  statement  of  the  ma- 
terial parts  of  the  pleading. 

5.  Every  adjournment,  stating  on  whose  application  and 
to  what  time. 

6.  The  demand  for  a  trial  by  jury,  when  the  same  is 
made,  and  by  whom  made,  the  order  for  the  jury,  and  the 
time  appointed  for  the  return  of  the  jury  and  for  the 
trial. 

7.  The  names  of  the  jurors,  who  appear  and  are  sworn, 
and  the  names  of  all  witnesses  sworn,  and  at  whose  re- 
quest 


§J   312-914  DOCKETS.  360 

8.  The  verdict  of  the  Jury,  and  when  received;  if  the 
Jury  disagree  and  are  discharged,  the  fact  of  such  disagree- 
ment and  discharge. 

9.  The  Judgment  of  the  court,  specifying  the  costs  in- 
cluded, and  the  time  when  rendered. 

10.  The  Issuing  of  the  execution,  when  issued  and  to 
whom,  the  renewals  thereof,  if  any,  and  when  made,  and 
a  statement  of  any  money  paid  to  the  Justice,  when  and 
by  whom. 

11.  The  receipt  of  a  notice  of  appeal.  If  any  be  given, 
and  of  the  appeal  bond,  if  any  be  filed.  En.  March  11, 
1872.     Am'd.   1873-4,  334. 

Cal.  Rep.  Clt.      74,  345;    85,  134;    124,  SCO;    133,  487. 
Prac.  Act,  sec.  604.    En.  April  29,  1851.     Am'd.  1855,  197. 
Cal.  Rep.  Cit    81,  54;    34,  326. 

Docket  in  Justices'  court  In  cities  and  counties:  Ante, 
sec.  93. 

§  912.     Entries  therein  prima  facie  evidence  of  the  fact. 

The  several  particulars  of  the  last  section  specified  must 
be  entered  under  the  title  of  the  action  to  which  they 
relate,  and  (unless  otherwise  In  this  title  provided)  at  the 
time  when  they  occur.  Such  entries  In  a  justice's  docl^et, 
or  a  transcript  thereof,  certified  by  the  Justice,  or  his 
successor  in  office,  are  prima  facie  evidence  of  the  facts 
so  stated.     En.   March  11,  1872.     Am'd.   1880,  20. 

Cal.  Rep.  Cit.     85,  134;    87,  631;    115,  85;    124,  860, 

Prac.  Act,  sec.  605.     En.  April  29,  1851. 

CaJ.  Rep.  Clt.     31,  54;    34,  326. 

Prima  facie  evidence:   Post,  sec.  1833. 

§  913.  An  Index  to  the  docket  must  be  kept.  A  Justice 
must  keep  an  alphabetical  index  to  his  docket,  in  which 
must  be  entered  the  names  of  the  parties  to  each  Judg- 
ment, with  a  reference  to  the  page  of  entry.  The  names 
of  the  plaintiffs  must  be  entered  In  the  index,  in  the  alpha- 
betical order  of  the  first  letter  of  the  family  name.  En. 
March  11,  1872. 

Prac  Act,  sec.  606.     En.  April  29,  1851. 

§  914.  Dockets  must  be  delivered  by  justice  to  his  suc- 
cessor,  or  to   county   clerk.     Every   justice   of   the   peace. 


36]  DOCKETS.  S5  915-9" 

upon  the  expiration  of  his  term  of  offlce,  must  deposit  with 
his  successor  his  official  dockets  and  all  papers  filed  in 
his  office,  as  well  his  own  as  those  of  his  predecessors,  or 
any  other  which  may  be  in  his  custody  to  be  kept  as  public 
records.    En.   March  11,  1872. 

Prac.  Act,  sec.  607.  En.  April  29,  1851.  Am'd.  1863,  232; 
1S69-70,   223. 

§  915.  Proceedings  when  office  becomes  vacant,  and 
before  a  successor  is  appointed.  If  the  office  of  a  justice 
become  vacant  by  his  death  or  removal  from  the  town- 
ship or  city,  or  otherwise,  before  his  successor  is  elected 
and  qualified,  the  docket  and  papers  in  possession  of  such 
justice  must  be  deposited  in  the  office  of  some  other  jus- 
tice in  the  township,  to  be  by  him  delivered  to  the  suc- 
cessor of  such  justice.  If  there  is  no  other  justice  in  the 
township,  then  the  docket  and  papers  of  such  justice  must 
be  deposited  in  the  office  of  the  county  clerk  of  the  county, 
to  be  by  him  delivered  to  the  successor  in  office  of  the 
justice.    En.   March  11,   1872. 

§  916.     A  justice  may    issue   execution   or  other   process 

upon  the  docket  of  his  predecessor.  Any  justice  with 
whom  the  docket  of  his  predecessor  or  of  any  other  jus- 
tice is  deposited,  has  and  may  exercise  over  all  actions  and 
proceedings  entered  in  such  docket,  the  same  jurisdiction 
as  if  originally  commenced  before  him.  In  case  of  the 
creation  of  a  new  country,  or  the  change  ol  the  boundary 
between  two  counties,  any  justice  into  whose  h^nds  the 
docket  of  a  justice  formerly  acting  as  such  within  the 
same  territory,  may  come,  is,  for  the  puriwses  of  this 
section,  considered  the  successor  of  such  former  justice. 
En.  March  11,  1872. 

Prac.  Act,  sec.  608.  En.  April  29,  1851.  Am'd,  1855,  304; 
1863,   232. 

§  917.  Justice  Is  successor  of  prior  holdcf.  The  justice 
elected  to  fill  a  vacancy  is  the  successor  of  the  justice 
whose  office  became  vacant  before  the  expiration  of  a  full 
term.  When  a  full  term  expires,  the  same  or  another  per- 
son elected  to  take  office  in  the  same  township  or  city, 
from  that  time  is  the  successor.    En.  March  11,  1872. 

Prac.  Act,  sec.  609.    En.  April  29,  1851. 


§§  91S-321  GENERAL    PROVISIONS.  363 

§  918.  Designation  of  succeeding  justice.  Wlicn  two 
or  more  justices  are  equally  entitled  under  the  last  sec- 
tion, to  be  deemed  the  successors  in  office  of  the  justice,  a 
judge  of.  the  superior  court  must,  by  a  certificate  sub- 
scribed by  him  and  filed  in  the  ofiice  of  the  county  clerk, 
designate  which  justice  is  the  successor  of  a  justice  going 
out  of  office,  or  whose  office  has  become  vacant.  En. 
March  11.  1872.     Am'd.   1880,  20. 

Prac.  Act,  sec.  610.    En.  April  29,  1851. 
CHAPTER   XII. 

GENERAL,    PROVISIONS     RELATING    TO     JUSTICES'     COURTS. 

§  919.    Justices   may   issue   subpoenas   and   final    process   to   any   part   of 

the   county. 
§  920.    Blanks    must   be   filled   in   all   papers  issued   by   a   justice,    except 

subpoenas. 
§  921.    Justices    to    receive   all   moneys    collected   and   pay    same   to   par- 

Ues. 
5  922.    In   case    of   disability    of   Justice   another  Justice   may   attend    on 

his   behalf. 
I  92S.     Justices    may    require    security    for    costs. 
§  924.    Who   entitled    to   costs. 

5  925.    What   provisions   of   code   applicable   to  Justices'    court* 
§  92*.     Deposit    in    lieu   of   undertaking. 

S  919.  Justices  may  issue  subpoenas  and  final  process  to 
ai?iy  part  cf  the  county.  Justices  of  the  peace  may  issue 
subpoenas  in  any  action  or  proceeding  in  the  courts  held 
by  them,  and  final  process  or  any  judgment  recovered 
therein,  to  any  part  of  the  county.    En.  March  13,  1872. 

Prac.  Act,  sec.  619.    En.  April  29,  1851.    Am'd.  1863,  496. 

Final  process,  to  any  part  of  the  county:  Ante,  sees. 
94,   106. 

§  920.  Blanks  must  be  filled  in  all  papers  issued  by  a 
justice,  except  subpoenas.  The  summons,  execution,  and 
every  other  paper  made  or  issued  by  a  justice,  except  a 
subpoena,  must  be  issued  without  a  blank  left  to  be  filled 
by  another,  otherwise  it  is  void.    En.  March  11,  1872. 

Cal.  Rep.  Cit    138,  647;   138,  649;   138,  650. 

Prac.  Act,  sec  611.    En.  April  29,  1351. 

{  921,  Justices  to  receive  all  mor,«ys  collected  and  pay 
s^asae  to  part'es.  Justices  ol  the  peace  must  receive  from 
tlife  sberifE  or  casstables  of  their  county,  all  moneys  col- 


3C3  GENERAL    PROVISIONS.  55  922-925 

lected  on  any  process  or  order  issued  from  their  courts 
respectively,  and  must  pay  the  same,  and  all  moneys  paid 
to  them,  in  their  official  capacity,  over  to  the  parties  en- 
titled or  authorized  to  receive  them,  without  delay.  En. 
March  11,  1872.     Am'd.  1880,  20. 

Prac.  Act,  sec.  633.     En.  April  29,  185L 

Cal.    Rep.    Cit.     25,    538. 

§  922.  In  case  of  disability  of  justice  another  justice 
may  attend  on  his  behalf.  In  case  of  the  sickness  or  other 
disability,  or  necessary  absence  of  a  justice,  on  a  return 
of  a  summons,  or  at  the  time  appointed  for  a  trial,  another 
.>ustice  of  the  same  township  oi  city  may,  at  his  request, 
attend  in  his  behalf,  and  thereupon  is  vested  with  the 
power,  for  the  time  being,  of  the  justice  before  whom  the 
summons  was  returnable.  In  that  case,  the  proper  entry 
of  the  proceedings  before  the  attending  justice,  subscribed 
by  him,  must  be  made  in  the  docket  of  the  justice  before 
whom  the  summons  was  returnable.  If  the  case  is  ad- 
journed, the  justice  before  whom  the  summons  was  return- 
able may  resume  jurisdiction.     En.  March  11,  1872, 

Prac.  Act,  sec.  612.     En.  April  29,  1851. 

§  923.  Justices  may  require  security  for  costs.  Justices 
may,  in  all  cases,  require  a  deposit  of  money  or  an  under- 
taking, as  security  for  costs  of  court,  before  issuing  a 
summons.     En.  March  11,  1872. 

Prac.  Act,  sec.  634.    En.  April  29,  1851. 

Prepayment  of  fees:  Ante,  sec.  91. 

§  924.  Who  entitled  to  costs.  The  prevailing  party  In 
justices'  courts  is  entitled  to  costs  of  the  action,  and  also 
of  any  proceedings  taken  by  him  in  aid  of  an  execution 
issued  upon  any  judgment  recov2red  therein.  En.  March 
11,  1872.     Am'd.  1873-4,  335. 

Prac.  Act,  sec.  631.  En.  April  29,  1851.  Am'd.  1854,  71; 
1885,  251. 

Costs:  Ante,    sec.    896. 

§  925.  What  provisions  of  code  applicable  to  justices' 
courts.  Justices'  courts  being  courts  of  peculiar  and  limit- 
ed jurisdiction,  only  those  provisions  of  this  code  which 
are,  in  their  nature,  applicable  to  the  organization,  powers. 


§5  926.  929  ayiL,  ACTIONS   IN   POLICE   COURTS.  184 

and  course  of  proceedings  in  justices'  courts,  or  which 
have  been  made  applicable  by  special  provisions  in  this 
title,  are  applicable  to  justices'  courts  and  the  proceedings 
therein.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     47,    133,   74,    343;    114,   373. 

Prac.  Act,  sec.  603.  En.  April  29,  1851.  Am'd.  1853,  280. 
1854,  70;    1854,  73. 

Prac.  Act,  sec.  635.    En.  April  29,  1851.     Am'd.  1860,  3U6. 

Peculiar  and  limited  jurisdiction:  Ante,  sees.   112-114. 

§  926.  Deposit  in  lieu  of  undertaking.  In  all  civil 
cases  arising  in  justices'  courts,  wherein  an  undertaking  is 
required  as  prescribed  in  this  code,  the  plaintiff  or  defend- 
ant may  deposit  with  said  justice  a  sum  of  money  in 
United  States  gold  coin  equal  to  the  amount  required  by 
the  said  undertaking,  which  said  sum  of  money  shall  be 
taken  as  security  in  place  of  said  undertaking.  En.  Stats. 
1877-8,  103. 

Cal.  Rep.  Cit.     147,  173;   147,  174. 


TITLE  XII. 

PROCEKDINGS    IN     CIVIL    ACTIONS     IN     POLICE     COURTS. 

5  929.  How    commenced. 

§  930.  Summons    must    issue    on    filing    complaint. 

§  931.  Defendant    may    plead    orally    or   In    writing. 

§  932.  Trial   by    jury,    when    defendant    Is   entitled    to. 

§  933.  Proceedings    to    be    conducted    as    In    justices'    courts. 

§  929.  How  commenced.  Civil  actions  in  police  courts 
are  commenced  by  filing  a  complaint,  setting  forth  the 
violation  of  the  ordinance  complained  of,  with  such  par- 
ticulars of  time,  place,  and  manner  of  violation  as  to  en- 
able the  defendant  to  understand  distinctly  the  character  of 
the  violation  complained  of,  and  to  answer  the  complaint. 
The  ordinance  may  be  referred  to  by  its  title.  The  com- 
plaint must  be  verified  by  the  oath  of  the  party  complain- 
ing, or  of  his  attorney  or  agent.    En.  March  11,  1872. 

Cal.  Rep.   Cit.     56,   148. 

Prac.   Act,   sec.   636.    En.  April   29,   1851. 

Jurisdiction  of  police  court:  See  Pol.  Code,  sees.  4426, 
4427. 

Provisions  relating  to  police  judges:  See  Pol.  Code, 
Bees.  4424-4432. 


3C5  CIVIL   ACTIONS    IN    POLICE    COURTS.  §5  930-033 

§  930.  Summons  must  Issue  on  filing  complaint.  Imcae- 
diately  after  filing  the  complaint,  a  summons  must  be 
issued,  directed  to  the  defendant,  and  returnable  either 
immediately  or  at  any  time  designated  therein,  not  exceed- 
ing four  days  from  the  date  of  its  issuing.  En.  March  11, 
1872. 

Cal.  Rep.  Cit     56,   148;    127,    540. 

Prac    Act,  sec.  637.     En.  April  29,  1851. 

§  931.     Defendant   may   plead   orally   or   in   writing.    On 

the  return  of  the  summons  the  defendant  may  answer  the 
complaint.  The  answer  may  be  oral  or  in  writing,  and 
immediately  thereafter  the  case  must  be  tried,  unless,  for 
good  cause  shown,  an  adjournment  is  granted.  En.  March 
11,  1872. 

Prac.  Act,  sec.  638.    En.  April  29,  1851. 

§  932.    Trial    by  jury,  when    defendant    Is    entitled   to. 

In  all  actions  for  violation  of  an  ordinance,  where  the  fine, 
forfeiture,  or  penalty  imposed  by  the  ordinance  is  less 
than  fifty  dollars,  the  trial  must  be  by  the  court  In  ac- 
tions where  the  fine,  forfeiture,  or  penalty  imposed  by  the 
ordinance  is  over  fifty  dollars,  the  defendant  is  entitled  to 
a  trial   by  jury.     En.  March  11,   1872. 

Prac.  Act,  sec.  639.     En.  April  29,  1851. 

§  933.  Proceedings  to  be  conducted  as  In  justices' 
courts.  All  proceedings  in  civil  actions  in  police  courts 
must,  except  as  in  this  title  otherwise  provided,  be  con- 
ducted in  the  same  manner  as  civil  actions  in  justices' 
courts.    En.  March  11,  1872. 

Cal.  Rep.   Cit.     51,  500;    56,  148;    95,  380. 

Prac.  Act,  sec.    641.     En.    April   29,    1851. 
Civil   proceedings   in   justices'    courts:   Sees.    832-926. 
Disqualification  of  police  judge,  calling  in  of  justice  of 
the  peace:  See  Pol.  Code,  sec.  4428. 


I  938  APPEALS    IN    GENEUAL.  tSB 

TITLE  XIII. 

OF   APPEALS   IN   CIVIL   ACTIONS. 

Chapter  I.     Appeals  in  General,  §§  936-959. 

II.     Appeals  to  Supreme  Court,  §§  9(;;!-9()6. 
III.     Appeals  to  Superior  Courts,  §§  974-yi)0. 

CHAPTER  I. 

APPEALS   IN    GENERAL. 

5  936.     Jurlgr.Tient    an-d    orders    may    be    reviewed. 

I  937.  Orders  made  out  of  court,  without  notice,  may  be  reviewed  by 
the   judge. 

§  938.    Party    aggi  ieved    may   appeal.    Names    of    parties. 

§  939.    Within    what    time    appeal    may    be    taken. 

§  940.     Appeal,    how    taken. 

§  941.     Undertaking    or    Uepo.sit    on    appeal. 

§  942.     Undertaking    on    appeal    from    a    money    judgment. 

§  943.     Apped.1    from    a   judgment    for    delivery    of    documents. 

§  944.  Appeal  from  a  judgment  directing  execution  of  a  conveyance, 
etc. 

§  945.    Undertaking    on    appeal    concerning    real    property. 

§  946.  Stay  of  proceedings.  The  security  on  appeal  may  be  lim- 
ited   in    the    case    of    an    executor,    etc. 

§  947.     Undertaking    may   be   in    one    instrument   or   several. 

§  948.    Justification    of    sureties    on    undertaking    on    appeal. 

§  'J49.     Undertakings    In    casrs    not    specified. 

§  950.     What   papers   to   be   used    on    an   appeal   from   the  judgment. 

§  951.  What  papers  used  on  appeals  from  orders,  except  orders  grant- 
ing   or    refusing    new    trials. 

5  952.  What  papers  to  be  used  on  an  appeal  from  an  order  grant- 
ing   or    refusing    a    new    trial. 

§  953.     Copies    an>3    undertakings,    how    certified. 

§  954.    When    an    appeal    may   be    dismissed.    When   not. 

§  955.     Effect   of   dismissal. 

§  956.    What    may    be    reviewed    on    appeal    from    judgment. 

§  957.     Remedial    powers    of   an    appellate    court. 

§  958.  On  judgment  on  appeal,  remittitur  must  be  certified  to  th« 
clerk   of   the  court   below. 

§  959.  Provisions  of  this  chapter  not  applicable  to  appeals  to  supe- 
rior   courts. 

Gen.  Cit.  to  Chap.— Cal.  Rep.  Cit.  101,  199;  114,  214;  119, 
438. 

§  936.  Judgment  and  orders  may  be  reviewed.  A  judg- 
ment or  order  in  a  civil  action,  except  when  expressly- 
made  final  by  this  code,  may  be  reviewed  as  prescribed  in 
this  title,   and  not  otherwise.     En.   March  11,   1872. 

Cal  Rep.  Cit.  54.  520;  61,  194;  68,  338;  72,  192;  84,  9; 
84,  488;  90,  327;  119,  439;  119,  440;  133,  108;  140, 
356. 


SG?  APPEALS    IN    GEXERAU  §§  ^37,  WSJ 

Prac.  Act,  sec.  333.     En.  April  29,  1851.     Am'd.  1854.  G4. 
Cal.  Rep.  Cit.     3,  249;   8,  301;   29,  462. 
Prac.  Act,  sec.  338.     En.  April  29,  1851.     Am'd.  1863,  644. 
Cal.  Rep.   Cit.     8,  323;    8,  619;    15,  356;    17,  514;    25,  485; 

25,   487;    25,   488;    25,   514;    25,   515;    27,  410;    27,   474; 

28,   240;    28,   262;    28,    419;    30,   184;    30,   221;    32,    320; 

32,  323;  41,  442;  41,  634;  45,  109;  47,  427;  47,  641. 
Prac.  Act,  sec.  339.     En.  April  29,  1851.     Am'd.  1855,  303; 
1863,  644. 
Cal.  Rep.  Cit.     8,  323;   8,  619;  9,  210;   28,  240;  28,  262. 
Prac.  Act,  sec.  340.     Eu.  April  29,  1851. 
Prac.   Act,  sec.   341.    En.   April  29,  1851. 
Cal.  Rep.  Cit     8,  619;  28,  262. 

Prac.  Act,  sec.  342.     En.  April  29,  1851.     Am'd.  1864,  247. 
Cal.  Rep.  Cit.     8,  619;  45,  44. 

Prac.  Act,  sec.  343.     En.  April  29,  1851.     Am'd.  1854,  64. 
Cal.  Rep.  Cit.     17,  514;   22,  362;   28,  163;  33,  554;   33,  678; 

41,  442;   41,  443;   45,  44;   45,  90. 
Prac.  Act,  sec.  344.     En.  April  29,  1851. 
Cal.  Rep.  Cit.     24,  448;  28,  297. 
Judgments  and  orders,  appeal  from:   Sec.  939. 

§  937.  Orders  made  out  of  court,  without  notice,  may  be 
reviev^ed  by  the  judge.  An  order  made  out  of  court,  with- 
out notice  to  the  adverse  party,  may  be  vacated  or  modi- 
fied without  notice,  by  the  judge  who  made  it;  or  may  be 
vacated  or  modified  on  notice,  in  the  manner  in  which 
other   motions  are  made.    En.   March   11,   1872. 

Cal.  Rep.  Cit  68,  401;  72,  271;  72.  272;  72,  273;  72,  275; 
72,  276;   72,  552;    145,  571;   145,   572. 

Prac.  Act  sec.  334.     En.  April  29,  1851. 

Cal.  Rep.  Cit  9,  19;  12,  448;  33,  390;  33,  391;  72,  373; 
72,   276. 

Orders,  generally:  Sees.  1003  et  seq. 

§  938.     Party  aggrieved  may  appeal.     Names  of  parties. 

Any  party  aggrieved  may  appeal  in  the  cases  prescribed  in 
this  title.  The  party  appealing  is  known  as  the  appellant, 
and  the  adverse  party  as  the  respondent.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.     53,  745;    55,  311;   56,  626;   73,  96;   79,  249; 

83,  422;    83,   564;    83,   565;    88,   49;    98,   605;    102,   260; 

117,  239;    118,  503;    127,  452;    139,  238;    144,  506;    144, 

507;   144,  508;    147,  608. 


g  939  APPEALS     IN     GENERAU  «68 

Prac.  Act,  sec.  335.     En.  April  29.  1851. 

Cal.  Rep.  Cit.     38,   640. 

Death  of  party,  effect  of:  Ante,  sec.  385. 

§  939.  Within  what  time  appeal  may  be  taken.  An 
appeal  may  be  taken: 

1.  From  a  final  judgment  in  an  action  or  special  proceed- 
ing commenced  in  the  court  in  which  the  same  is  rendered, 
within  six  months  after  the  entry  of  judgment.  But  an 
exception  to  the  decision  or  verdict,  on  the  ground  that 
it  is  not  supported  by  the  evidence,  cannot  be  reviewed 
on  an  appeal  from  the  judgment,  unless  the  appeal  is 
taken  within  sixty  days  after  the  rendition  of  the  judg- 
ment; 

2.  From  a  judgment  rendered  on  an  appeal  from  an  in- 
ferior court,  within  ninety  days  after  the  entry  of  such 
judgment; 

3.  From  an  order  granting  or  refusing  a  new  trial;  from 
an  order  granting  or  dissolving  an  injunction;  from  an 
order  refusing  to  grant  or  dissolve  an  injunction;  from  an 
order  appointing  a  receiver;  from  an  order  dissolving  or 
refusing  to  dissolve  an  attachment;  from  an  order  granting 
or  refusing  to  grant  a  change  of  the  place  of  trial;  from 
any  special  order  made  after  final  judgment;  from  an  in- 
terlocutory judgment,  order  or  decree  hereafter  made  or 
entered  in  any  action  to  redeem  real  or  personal  property 
from  a  mortgage  thereof,  or  lien  thereon  determining  such 
right  to  redeem  and  ordering  an  accounting;  from  an 
interlocutory  judgment  in  actions  for  partition  of  re^l 
property;  and  from  an  order  confirming,  changing,  modi- 
fying, or  setting  aside  the  report,  in  whole  or  in  part,  of 
the  referees  in  actions  for  partition  of  real  property  in 
the  cases  mentioned  in  section  seven  hundred  and  sixty- 
three  of  this  code,  within  sixty  days  after  the  order  of  [or] 
interlocutory  judgment  is  made  and  entered  in  the  minutes 
of  the  court,  or  filed  with  the  clerk.  En.  March  11,  1872. 
Am'd.  1880,  61;   1897,  55;  1899,  7. 

CaL  Rep.  Cit.  49,  108;  52,  652;  60,  421;  64,  611;  66,  137; 
67,  200;  69,  204;  72,  193;  80,  169;  81,  215;  84,  532; 
84,  533;  89,  521;  90,  327;  108,  454;  110,  174;  116,  72; 
118,  484;  118,  485;  119,  440;  120,  236;  133,  248;  137, 
308;  137,  309;  137,  310;  137,  361;  137,  371;  138,  690; 
138,  726;  143,  495;  146,  325.  Subd.  1—46,  546; 
52,  623;  53,  745;  54,  519;  55,  45;  60,  572;  61, 
334;  65,  221;  71,  302;  72,  192;  75,  497;  76,  354;  77, 
526;    80.   168;    81.  246;    84,   488;    84,   531;    87,  412;    89, 


369  APPEALS     IN     GENEKAU.  9  WO 

100;  90,  5;  99,  178;  106,  150;  107,  52;  111,  2;  111, 
635;  113,  374;  117,  228;  119,  159;  122,  15G;  123,  510; 
127,  523;  128,  141;  129,  46;  129,  201;  131,  325;  133, 
108;  140,  664;  145.  117.  Subd.  3—52,  77;  53,  26;  53. 
632;  57,  634;  62,  545;  63,  233;  64,  611;  65,  221;  65,  501; 
71,  400;  71,  518;  77,  611;  91,  356;  99,  410;  101,  584; 
106,  145;  110,  57;  125,  16;  127,  419;  129,  46;  130.  181; 
130,  509;  131,  279;  132,  325;  132,  341;  133,  108;  133. 
365;  134,  122;  137,  56;  139,  259;  140,  356;  145,  147. 
Prac.  Act,  sec.  336.  En.  April  29,  1851.  Am'd.  1854,  64; 
1859,  liO,    1863,  756;     1866,  706. 

Cal.  He'x  Cit.     6,  232;    8,  57;     12,  281;     20,  142;     24,  335 
24,  448;    28,  417;    28,  419;    31,  208;    31,  209;    31,  367 
53,  392;    35,  553;    35,  698;    38,  387;    38,  424;    41,  407 
42,  114;    49,  128;    54,  519;    57,  634;    67,  204;    84,  488 
122,    156;      137,    309.     Subd.  1—42,   119.     Subd.   2-42, 
119.     Subd.  3—42,  113;    43,  627;    91,  356. 
Effect  of  appeals:    See  sec.  946,  infra.    As  to  the  record 
on  appeals:   See  sec.  951,  post. 

Appeals,  to  supreme  court:  Post,  sees.  963-966;  to  supe- 
rior court:    Post,  sees.  974-980. 

Definition  of  judgment:  Sec.  577;  exceptions,  need  of: 
Sees.  646,  956. 

As  to  appeal  from  judgment  on  controversy  submitted 
without  action:    Post,  sec.  1140. 

Orders  reviewable  on  appeal  from  judgment:  Post,  sec. 
956. 

§  940.  Appeal,  how  taken.  An  appeal  is  taken  by  filing 
with  the  clerk  of  the  court  in  which  the  judgment  or  order 
appealed  from  is  entered,  a  notice  stating  the  appeal  from 
the  same,  or  some  specific  part  thereof,  and  serving  a 
similar  notice  on  the  adverse  party  or  his  attorney.  The 
order  of  service  is  immaterial,  but  the  appeal  is  ineffectual 
for  any  purpose  unless  within  five  days  after  service  of  the 
notice  of  appeal,  an  undertaking  be  filed,  or  a  deposit  of 
money  be  made  with  the  clerk,  as  hereinafter  provided,  or 
the  undertaking  be  waived  by  the  adverse  party  in  writing. 
En.    March    11,   1872.     Am'd.   1873-4,   336. 

Cal.  Rep.  Cit.  46,  651;  48,  568;  52,  326;  54,  494;  55,395 
56,  120;  60,  281;  60,  282;  62,  517;  63,  280;  63,  385 
65,  222;  67,  201;  68,  169;  68,  190;  68,  328;  68,  329 
68,  339;  68,  344;  CS,  345;  69,  82;  71,  296;  72,  159 
72,  160;  74,  105;  75,  540;  75,  543;  79,  104;  79,  249 
80,  63;  81,  245;  83,  137;  83,  564;  83,  565;  87,  243 
83,  598;  95,  442;  99,  42;  99,  174;  99,  267;  103,  68 
109,  603;  111,  430;   112,  149;   112,  632;  114,  42;  116,  494 

Code   Civil   Proc— 24. 


]  941  AFPEAI.S    IN    GENERAL.  IW 

122,  389;  124,  543;  128,  213;  129,  158;  129,  190;  130, 
61;  130,  554;  131,  289;  132,  198;  132,  253;  133,  3G2; 
13S,  3G3;  134,  179;  134,  181;  134,  460;  137,  375;  139, 
77;    141,357;     141,358;    143,405;    143,479;    146,575. 

Prac.  Act,  sec.  337.    Eu.  April  29,  1851. 

Cal.  Rep.  Cit.  15,  384;  24,  97;  24,  9S;  25,  355;  29,  403; 
30,  183;  30,  184;  38,  040;  39,  151;  60,  282;  62,  517; 
115,  384. 

Service  of  papers:   Sees.  1010-1017. 

Notice,  generally:   Post,  sees.  1010  et  scq. 

Undertaking  on  appeal,  requirements  of:  Post,  sec.  941; 
unnecessary,  when:  Post,  sees.  965,  1058;  exception  to 
sureties,  time  for:   Ante,  sec.  648, 

Exceptions,   necessity  for:    Ante,  sec.   646,  post,  sec.  956. 

As  to  the  practice  on  appeals  in  criminal  causes:  See 
Pen.  Code,  sees.  1237  et  seq. 

§  J41.  Undertaking  or  deposit  on  appeal.  The  under- 
taliiug  on  appeal  must  be  in  writing,  and  must  be  exe- 
cuted on  the  part  of  the  appellant,  by  at  least  two  sureties, 
to  the  effect  that  the  appellant  will  pay  all  -damases  and 
costs  which  may  be  awarded  against  him  on  the  appeal,  or 
on  a  dismissal  thereof,  not  exceeding  three  hundred  dol- 
lars; or  that  sum  must  be  deposited  with  the  clerk  with 
whom  the  judgment  or  order  was  entered,  to  abide  the 
event  of  the  appeal.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  52,  623;  54,  184;  54,  494;  58,  356;  63, 
384,  63,  385;  64,  232;  04,  475;  07,  215;  69,  242;  69, 
243,  71,  296;  72,  159;  72,  100;  80,  453;  81,  228;  89, 
32,  89,  33;  94,  567;  98,  626;  107,  195;  109,  003;  123, 
447,  120,  458;  129,  158;  129,  159;  129,  301;  132,  341; 
134,  63;  136,  674;  137,  449;  140,  83;  140,  87;  141, 
357;  143,  315;  144,  633. 
Prac.  Act,  sec.  348.  En.  April  29,  1851. 
Cal.  Rep.  Cit.     7,  132;     9,  39;     9,  250;     15,  384;     15,  386; 

24,  96;    32,  374;    42,  278;     61,  338. 
Prac.  Act,  sec.  360.    En.  April  29,  1851.     Am'd.  1854,  65; 
18G5-6,  847. 

Prac.   Act,  sec.   361.     En.  April  29,  1851.     Am'd.  1854,  66. 
Prac.    Act,    sec.    362.     En.    April    29,    1851.     Am'd.    1863, 
277;    1854,   66;    1854,   73. 
Cal.  Rep.  Cit.     28,  117. 

Undertaking  on  appeal,  filing,  time  for:    Sec.    940;     and 
see    sec     1054;     sufficiency   of:    Sec.   954;    sureties,   paying 
judgment:    Sec.  1059. 
I>eposit  with  clerk:  Sec.  948. 


871  APPEALS    IN    GENERAL.  8  942 

Filing-  new  undertaking    in    appellate    court:    Se«    post, 
sec.  954. 
Qualification  of  sureties:   Sec.  1057. 

§  942.  Undertaking  on  appeal  from  a  money  Judgment. 
If  the  appeal  be  from  a  judgment  or  order  directing  the 
payment  ci'  money,  it  does  not  stay  the  execution  of  the 
judgment  or  order  unless  a  written  undertaking  be  exe- 
cuted on  the  part  of  the  appellant,  by  two  or  more  sureties, 
to  the  effect  that  they  are  bound  in  double  the  amount 
named  m  the  judgment  or  order;  that  if  the  judgment  or 
order  appealed  from,  or  any  part  thereof,  be  affirmed,  or 
the  appeal  be  dismissed,  the  appellant  will  pay  the  amount 
directed  *.o  be  paid  by  the  judgment  [or]  order,  or  the  part 
of  such  amount  as  to  which  the  judgment  or  order  is 
aflirmed,  if  affirmed  only  in  part,  and  all  damages  and 
costs  which  may  be  awarded  against  the  appellant  upon 
the  apptal,  and  that  if  the  appellant  'does  not  make  such 
payment  within  thirty  days  after  the  filing  of  the  remitti- 
tur from  the  supreme  court  in  the  court  from  which  the 
appeal  is  taken,  judgment  may  be  entered  on  motion  of 
the  respondent  in  his  favor  against  the  sureties,  for  such 
amount,  together  with  the  interest  that  may  be  due  there- 
on, and  the  damages  and  costs  which  may  be  awarded 
against  the  appellant  upon  the  appeal.  If  the  judgment 
or  order  appealed  from  be  for  a  gi'eater  amount  than  two 
thousand  dollars,  and  the  sureties  <Jo  not  state  In  their 
affidavits  of  justification  accompanying  the  undertaking, 
that  they  are  each  worth  the  sum  specified  in  the  under- 
taking, the  stipulation  may  be  that  the  judgment  to  be 
entered  against  the  sureties  shall  be  for  such  amounts  only 
as  in  their  affidavits  they  may  state  that  they  are  sever- 
ally worth,  and  judgment  may  be  entered  against  the 
sureties  by  the  court  from  which  the  appeal  Is  taken, 
pursuant  to  the  stipulations  herein  designated.  When 
the  judgment  or  order  appealed  from  is  made  payable  in 
a  specified  kind  of  money  or  currency,  the  judgment  en- 
tered against  the  sureties  upon  the  undertaking  must  be 
made  payable  In  the  same  kind  of  money  or  currency. 
En.   March  11,   1872.     Am'd.   1873-4,  836. 

Cal.  Rep.  Cit.  52,  623;  54,  184;  54,  494;  56,  158;  57, 
232;  57.  233;  60.  619;  63,  285;  63,  384;  67,  199;  67, 
220,  67,  581;  69,  242;  69,  243;  71,  296;  71,  298;  72, 
159,  72,  160;  74,  50;  75,  262;  80,  453;  81,  228;  83, 
434;  89,  33;  90,  555;  94,  567;  97,  354;  97,  359;  97, 
436,  98,  443;  98,  444;  98,  445,  98,  627;  99,  284;  100, 
101;    100,  102;    105,  414;    107,  195;    110,  309;    115,  282; 


{  9«  APPEALS    IN    GENERAL.  8W 

IIG,  4C0;    118,  114;    124,  333;    124,  334;    125,  354;    127, 

GGl,     129,  301;    129,  387;    131,  42;    132,  128;    132,  341; 

137,    4C0;    138,    57;    139,    143;    140,    83;    140,    87;    144, 

633,   144,  74G. 
Prac.  Act,  sec.  349.     En.  April  29,  1851.     Am'd.  1863,  690. 
Cal.  Rep.  Clt.     7,  132;    9,  39;    24,  96;    40,  280. 
Deposit  in  lieu  If  undertaking:     Ante,  sec.  941;  post,  sec.  948. 
Qualification  of  sureties:    Post,  sec.  1057. 
Specified  kind  of  money:    Ante,  sec.  667. 
Stay  where  no  provision  made:    Post,  sec.  949. 

§  943.  Appeal  from  a  Judgment  for  delivery  of  docu- 
ments. If  the  judgment  or  order  appealed  from  direct  the 
assignment  or  delivery  of  documents  or  personal  property, 
the  execution  of  the  ju'dgment  or  order  cannot  be  stayed 
by  appeal,  unless  the  things  required  to  be  assigned  or  de- 
livered be  placed  in  the  custody  of  such  officer  or  receiver 
as  the  court  may  appoint,  or  unless  an  undertaking  be  en- 
tered into  on  the  part  of  the  appellant,  with  at  least  two 
sureties,  and  in  such  amount  as  the  court,  or  a  Judge  there- 
of, may  direct,  to  the  effect  that  the  appellant  will  obey 
the  order  of  the  appellate  court  upon  the  appeal.  If  the 
judgment  or  order  appealed  from  appoint  a  receiver,  the 
execution  of  the  judgment  or  order  cannot  be  stayed  by 
appeal,  unless  a  written  undertaking  be  executed  on  the 
part  of  the  appellant,  with  two  or  more  sureties,  to  the 
effect  that  if  such  judgment  or  order  be  affirmed  or  the 
appeal  dismissed,  the  appellant  will  pay  all  damages  which 
the  respondent  may  sustain  by  reason  of  such  stay,  not 
exceeding  an  amount  to  be  fixed  by  the  judge  of  the  court 
by  which  the  judgment  was  rendered  or  order  made, 
which  amount  must  be  specified  in  the  undertaking.  If 
the  judgment  or  order  appealed  from  direct  the  sale  of 
personal  property  upon  the  foreclosure  of  a  mortgage 
thereon,  the  execution  of  the  judgment  or  order  cannot 
be  stayeci  on  appeal,  unless  an  undertaking  be  entered 
Into  on  the  part  of  the  appellant,  with  at  least  two  sure- 
ties. In  such  amount  as  the  court,  or  the  judge  thereof, 
may  direct,  to  the  effect  that  the  appellant  will,  on  de- 
mand, deliver  the  mortgaged  property  to  the  proper  officer 
If  the  judgment  be  affirmed,  or  in  default  of  such  delivery 
that  the  appellant  and  sureties  will,  on  demand,  pay  to 
the  proper  officer  the  full  value  of  such  property  at  the 
date  of  the  appeal.  En.  March  11,  1872.  Am'd.  1880,  6; 
1807,    56. 

Cal.    Rep.    Cit.     52,   623;     54,   184;     67,   581;     69,   242;     69, 
243,   81,  228;    88,  206;    89,  33;    90,  555;    94,  567;    98, 


J7J  APPEALS    IN    GENERAL.  55  944,  94S 

442-    98    445;    115,    282;    124,   333;    132,   341;    133,   ?G5; 

138,   57;    140,   83;     140,   87;     140,   333;     140,   334;     144, 

632;    144,  633. 
Prac.  Act,  sec.  350.     En.  April  29,  1851. 
Cal.  Rep.  Cit.     24,  96. 
Receiver:   Seo.   564. 
Undertaking:  Sec.  941. 

§  944.  Appeal  from  a  Judgment  directing  execution  of  a 
conveyance,  etc.  If  the  judgment  or  order  appealed  from 
direct  the  execution  of  a  conveyance  or  other  instrument, 
the  execution  of  the  judgment  or  order  cannot  be  stayed 
by  the  appeal  until  the  instrument  is  executed  and  de- 
posited with  the  clerk  with  whom  the  judgment  or  order 
is  entered,  to  abide  the  Judgment  of  the  appellate  court. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.     52,  623;     54,  184;     67,  581;     69,  242;    69, 
243;    81,    228;    89,    33;    90,    555;     94,    567;     98,    442; 
115,  282;    124,  333;    132,  341;    138,  57;    140,  83;    140, 
87;    144,  633. 
Prac.  Act,  sec.  351.     En.  April  29,  1851. 

§  945.  Undertaking  on  appeal  concerning  real  property. 
If  the  judgment  or  order  appealed  from  Qirect  the  sale  or 
delivery  of  possession  of  real  property,  the  execution  of 
the  same  cannot  be  stayed,  unless  a  written  undertaking 
be  executed  on  the  part  of  the  appellant,  with  two  or  more 
sureties,  to  the  effect  that  during  the  possession  of  such 
property  by  the  appellant,  he  will  not  commit,  or  suffer  to 
be  committed,  any  waste  thereon,  and  that  if  the  judgment 
be  affirmed,  or  the  appeal  dismissed,  he  will  pay  the  value 
of  the  use  and  occupation  of  the  property  from  the  time 
of  the  appeal  until  the  delivery  of  possession  thereof,  pur- 
suant to  the  judgment  or  order,  not  exceeding  the  sum  to 
be  fixed  by  the  judge  of  the  court  by  which  the  judgment 
was  rendered  or  order  made,  and  which  must  be  specified 
in  the  undertaking.  "WTien  the  judgment  is  for  the  sale  of 
mortgaged  premises,  and  the  payment  of  a  deficiency  aris- 
ing upon  the  sale,  the  undertaking  must  also  provide  for 
the  payment  of  such  deficiency.  En.  March  11,  1872. 
Cal.  Rep.  Cit.-  52,  623;     54,  184;     64,  444;     67,  581;     69, 

242;     69,  243;     71,  102;     71,  103;     71,  296;     71,  299; 

71,  300;     77,   29;     80,  453;     81,  228;     84,  87;     84,  89; 

89,    33;    90,  555;    91,  309;    92,  554;    94,  567;    95,  41; 

95,  153;    97,  486;    97,  487;    97.  488;    98,  444;   98,  445; 

98,  c27;    99,  537;    104,  104;    104,  105;    105,  414;    105, 

415;   105,,  416;  105,  418;    105,  419;    107,  195;  107,  198; 

115,  282;    116,  87;    116,  461;    120,  833;  124,  838;    124, 


{  &M  APPEALS    IN    GENERAL.  Tit 

334;     129,  301;     129,   387;     130,   619;     132,   341;    134, 

63;    135,  661;     US,  57;    139,  143;    140,  83;    140,  87; 

144,    633. 
Prac.   Act,   sec.   352.     En.   April    29,   1851. 
Cal.  Rep.  Cit.     7,  132;    24,  96;    25,  346;    25,  353;    25,  354; 

98,  627;    105,  416. 
Mortgaged    realty,    sale   or   delivery    of   possession   of: 
Ante,  sees.  726,  744. 
Deposit  with  clerk:  -i^nte,  sec.  941;  post.  Bee.  948. 
Undertaking,  how  executed:   Sec.  941,  ante. 
Qualifications  of  sureties:   Post,  sec.  1057. 
Waste:  Ante,   sees.   745,  746. 

§  946.  Stay  of  proceedings.  The  security  on  appeal 
may  be  limited  in  the  case  of  an  executor,  etc.  Whenever 
an  appeal  is  perfected,  as  provided  in  the  preceding  sec- 
tions of  this  chapter,  it  stays  all  further  proceedings  in 
the  court  below  upon  the  judgment  or  order  appealed  from, 
or  upon  the  matters  embraced  therein,  and  releases  from 
levy  property  which  has  been  levied  upon  under  ericcutlon 
issued  upon  such  judgment;  but  the  court  below  may  pro- 
ceed upon  any  other  matter  embraced  in  the  action  and 
not  affected  by  the  order  appealed  from.  An[d]  the 
court  below  may,  in  its  discretion,  dispense  with  or  limit 
the  security  required  by  this  chapter,  when  the  appellant 
Is  an  executor,  administrator,  trustee,  or  other  person  act- 
ing in  another's  right.  An  appeal  does  not  continue  in 
force  an  attachment  unless  an  undertaking  be  executed 
and  filed  on  the  part  of  the  appellant,  by  at  least  two  sure- 
ties, in  double  the  amount  of  the  debt  claimed  by  him, 
that  the  appellant  will  pay  all  costs  and  damages  which 
the  respondent  may  sustain  by  reason  of  the  attachment, 
in  case  the  order  of  the  court  below  be  sustained;  and, 
unless,  within  five  days  after  tie  entry  of  the  order  ap- 
pealed from,  such  appeal  be  perfected.  En.  March  11, 
1872.     Am'd.   1873-4,   337. 

Cal.  Rep.  Cit.  47,  585;  49,  74;  52,  77;  54,  494;  60,  626; 
63,  610;  65,  333;  67,  377;  67,  378;  70,  294;  72,  198; 
72,  573;  80,  63;  80,  892;  81,  228;  84,  9;  84,  360; 
84,  381;  87,  244;  88,  481;  90,  81;  93,  575;  94,  567; 
99,  501;  99,  512;  99,  516;  101,  584;  102,  657;  107, 
539;  108,  450;  110,  403;  114,  214;  115,  88;  116, 
493;  116,  494;  120,  633;  126,  187;  132,  341;  133, 
113;  133,  247;  137,  373;  137,  494;   137,  496. 

Prac.  Act,  sec.  353.     En.  April  29,  1851.     Am'd.  1886,  707. 

Cal.  Rep.  Cit.  25,  355. 


m  APPEAI.S    IN    GENERAU  §§  847 -9« 

§  §47.  UndeKakmp  may  be  in  one  instrument  or  cev- 
eral.  The  u11dert3.kiE.p3  prescribed  by  sections  nine  hua^ 
dred  and  forty -oii8,  nine  hundred  and  forly-two,  in::;'  huii- 
dred  and  forty-thrwe,  and  nine  hundred  and  forty-five,  may 
be  in  one  instrument  or  several,  at  the  option  of  th.e  ap- 
pellant.    En.  March  11,  1872. 

Prac.  Act,  sec.  254.     En.  April  2S,  18^. 

Cal.  Rep.  Cit.    25,  355. 

§  948.  Justification  of  sureties  on  undet^king  on  ap- 
peal. The  adverse  party  may  except  to  th^e  sufficiency  of 
the  sureties  to  any  of  the  undertakings  mentioned  in  sec- 
tions nine  hundred  and  forty-one,  nine  hundred  and  forty- 
two,  nine  hundred  and  forty-three,  and  nine  hundred  and 
forty-five,  at  any  time  within  thirty  days  after  notice  of 
the  filing  of  such  undertaking;  and  unless  they  or  other 
sureties,  within  twenty  days  after  the  appellant  has  been 
served  with  notice  of  such  exception,  justify  before  a 
judge  of  the  court  below,  upon  five  days'  notice  to  the 
respondent  of  the  time  and  place  of  justification,  execution 
of  the  judgment,  order,  or  decree  appealed  from  is  no 
longer  stayed;  and  in  all  cases  where  an  undertaking  is 
required  on  appeal  by  the  provisions  of  this  title,  a  de- 
posit in  the  court  below  of  the  amount  of  the  judgment 
appealed  from,  and  three  hundred  dollars  in  addition,  shall 
be  equivalent  to  filing  the  undertaking;  and  in  all  cases 
the  undertaking  or  deposit  may  be  waived  by  the  written 
consent  of  the  respondent.  En.  March  11,  1872.  Am'd. 
1873-4,  338;   1880,  6;   1905,  155. 

Cal.  Rep.  Cit.  52,  149;  54,  494;  60,  282;  65,  223;  68, 
346;  68,347;  8.1,228;  95,419;  97,354;  97,359;  99, 
501;  109,  605;  110,  403;  115,  620;  130,  620;  135, 
661. 

Prac.  Act,  sec.  .?55.  En.  April  29,  1851.  Am'd.  1854,  65; 
1866,   708. 

Cal.  Rep.  Cit  18,  669;    24,  9^:    S2,  375. 

Justification   of   sureties:  Aat-e,   sec.   495. 

§  949.  Undertakings  in  cases  not  specified.  In  cases 
not  provided  for  in  sections  nine  hundred  and  forty-two, 
nine  hundred  and  forty-three,  nine  hundred  and  forty- 
four,  and  nine  hundred  and  forty-five,  the  perfecting  of  an 
appeal  by  giving  the  undertaking  or  making  the  deposit 
mentioned  in  section  nine  hundred  and  forty-one,  stavs 
proceedings  in  the  court  below  upon  the  judgment  or 
order  appealed  from,  except  where  It  directs  the  sale  of 
perishable  property;  in  which  case  the  court  belov/  may 
order  the  property  to  be  sold  and  the  proceeds  thereof  to 


§  950  APPEAL,S    rx    GENERAU  n» 

be  deposited,  to  abide  tlie  iud2:TOent  of  the  appellate  court; 
and  except,  also,  where  it  adjudges  the  defendant  gnilty 
of  usurping,  or  intruding  into,  or  unlawfully  holding  a 
public  office,  civil  or  military,  within  this  state,  and  ex- 
cept, also,  whore  the  order  grants,  or  refuses  to  grant, 
a  change  of  the  place  of  tris.1  of  an  action;  and  except 
also  where  it  orders  a  corporation  or  its  officers  or  agents, 
OT  any  cf  thero.,  t^p  give  to  a  person  adjudged  to  be  a  di- 
rector, stockl/oMtr  or  member  of  such  corporation  a  rea- 
Bcnable  oppovtianlty  to  inspect  or  take  copies  of  such 
books,  papers  or  documents  of  the  corporation  as  the 
court  finds  that  such  director,  stockholder  or  member  is 
entitled  by  law  to  inspect  or  copy.  En.  March  11,  1872, 
Am'd.   1873-4,   408:     1905,  22. 

Cal.  Rep.   Clt.     52,   623;     63.   45;     64,   232;     67,   581;     69, 

242;    69,  243;    70,  636;    70.  637;    73.  487;    81,  68;    84, 

381;     89,   33;     94.   567;     98,   306;     98,  444;     111,  111; 

115,    282;     115,    283;     119.   63G;     123.   446;     124,   333; 

125,   528;     125.   529:     129,   301;     131.   634;     132.   341; 

138.  18;     138,  57;     138,  246;     140,  83;     140,  86;     140, 

87;     143,  315;     144.  633. 
Prac.  Act,  sec.  356.     En.  April  2T),  1851. 
Cal.  Rep.  Cit     7,   132;     19,  119;     63,   45. 

§  950.  What  papers  to  be  used  on  an  appeal  from  thfl 
judgment.  On  an  appeal  from  a  final  judgment,  the  appel- 
lant must  furnish  the  court  with  a  copy  of  the  notice  of 
appeal,  of  the  judgment-roll,  and  of  any  bill  of  exceptions 
or  statement  in  the  case,  upon  which  the  appellant  relies. 
Any  statement  used  on  motion  for  a  new  trial,  or  settled 
after  decision  of  such  motion,  when  the  motion  is  made 
upon  the  minutes  of  the  court,  as  provided  in  section  six 
hundred  and  sixty-one,  or  any  bill  of  exceptions  settled,  aa 
provided  in  sections  six  hundred  and  forty-nine  or  six 
hundred  and  fifty,  or  used  on  motion  for  a  new  trial,  may 
be  used  on  appeal  from  a  final  judgment  equally  as  upon 
appeal  from  the  order  granting  or  refusing  the  new  trial. 
En.  March  11,  1872.     Am'd.  1873-4.  338. 

Cal.  Rep.  Cit.     47,  605;     47,  641;     51,  111;     53,  283;     54, 

212;     54,  236;     60,   279;     61,   195;     64,   594;     68,  338; 

68,  339;  68,  369;    73,  600;    77,  298;    81,  299;    81,  638; 

81,  639;    83,  160;    83,  622;    89,  69;    97,  182;    98,  107; 

98,  109;    99,  178;     99,  651;     107,  143;    120,  641;     121. 

225;    122,  2;    122.  481;    128.  138;    128,  139;    128.  140; 

132,  198;    133,  588;    138,  603;    138,  606;    141,  152;  141. 

154. 


3T7  APPEALS    IN    GENERAU  S§  951- WJ 

Prac.  Act,  sec.  .*iU5.  En.  April  29,  1851.  Am'd.  1854,  64; 
1864,  247. 

Cal.  Rep.  Cit.     10,  214;     14,  153;     15,  326;     25,  512;     25, 
584;    28,  5S;    28,  305;    28,  650;    29,  613;    34,  34;    77, 
299;     128.   138. 
Judgment-roll:  Ante,    sec.    670. 

Judgment,   what  orders   reviewable:  Post,   sec.   953. 
Tianscript,   authentication   of:  Post,   sec.    953;    contents: 
Post,  sees.  951-952. 

§  951-  What  papers  used  on  appeals  from  orders,  except 
orders  granting  or  refusing  new  trials.  On  appeal  from  o 
judgment  rendered  on  an  appeal,  or  from  an  order,  except 
an  order  granting  or  refusing  a  new  trial,  the  appellant 
must  furnish  the  court  with  a  copy  of  the  notice  of  appeal, 
of  the  judgment  or  order  appealed  from,  and  of  papers 
uped  on  the  hearing  in  the  court  below.  Eu.  March  11, 
1872.  Am'd.  1873-4,  339. 
Cal.  Rep.  Cit.     47,  166;   54,  286;   56,  136;   56,  174;   58,  617; 

61.    195;    63,    233;    68,    388;    69,    72;    70,    73;    75,    626; 

77,  298;    79,  50;    80,  476;    81,  609;    100,   612;    109,   120; 

114,  62;   119,  383;   125,  16;   127,  76;    128,  76;   132,  198; 

133,  198;    133,  363;   137,  423;    142,  157. 

§  952.  What  papers  to  be  used  on  an  appeal  from  an 
order  granting  or  refusing  a  new  trial.  On  an  appeal  frow 
an  order  granting  or  refusing  a  new  trial,  the  appellant 
must  furnish  the  court  with  a  copy  of  the  notice  of  ap- 
peal, of  the  order  appealed  from,  and  of  the  papers  desig- 
nated in  section  six  hundred  and  sixty-one  of  this  code. 
En.  March  11,  1872.     Am'd.  1873-4,  339. 

Cal.  Rep.  Cit.  54,  236;  54,  547;  66,  407;  68,  23;  69,  73; 
77,  298;  78,  385;  79,  123;  88,  149;  92,  64;  120,  236; 
128,  46;  132,  198;   144,  280. 

Papers  on  appeal  generally:  Ante,  sees.  950,  951. 

§  953.  Copies  and  undertakings,  how  certified.  The 
copies  provided  for  in  the  last  three  sections  must  be  cer- 
tified to  be  correct  by  the  clerk  or  the  attorneys,  and  must 
be  accompanied  with  a  certificate  of  the  clerk  or  attorneys 
that  an  undertaking  on  appeal,  in  due  form,  has  been  prop- 
erly filed,  or  a  stipulation  of  the  parties  waiving  an  under- 
taking.    En.  March  11,  1872.     Am'd.  1873-4,  339. 

Cal.  Rep.  Cit.  52,  644;  54,  276;  54,  277;  57,  140;  77,  298; 
83,  137;  109,  606;  109,  607;  111,  552;  120,  237;  128.  46; 
132,  198;   136,  675;    144,  633. 

Review   on   appeal:  Ante   sec.   53. 


S§  95^Se  APPKAL.S  IN   GKNSRAL.  HI 

§  954.  When  an  appeal  may  be  dismissed.  When  not. 
If  the  appellant  fails  to  furnish  the  requisite  papers,  the 
appeal  may  be  dismissed;  but  no  appeal  can  be  dismissed 
for  insufficiency  of  t^3  undertaking  thereon,  if  a  good  and 
sufficient  undertaking,  approved  by  a  justice  of  the  su- 
preme court,  be  filed  in  the  supreme  court  before  the  hear- 
ing upon  motion  to  dismiss  the  appeal.  When  it  is  made  to 
appear  to  the  satisfaction  of  the  court,  or  a  judge  thereof, 
from  which  the  appeal  was  taken,  that  a  surety  or  sureties 
upon  an  appeal  bond  from  any  cause  has  or  have  become 
Insufficient,  and  the  bond  or  undertaking  inadequate  as 
security  for  the  payment  of  the  judgment  appealed  from, 
the  last-named  court,  or  a  judge  thereof,  may  order  the 
giving  of  a  new  bond  with  sufficient  sureties,  as  a  condi- 
tion to  the  maintenance  of  the  appeal.  I'he  said  bond  or 
undertaking  shall  be  approved  by  the  last-named  court,  or 
a  judge  thereof;  and  in  case  said  sureties  fail  to  justify 
before  said  last-named  court,  or  a  judge  therecf,  or  fail  to 
comply  with  the  order  to  appear  and  justify,  execution 
may  issue  upon  the  judgment  as  if  no  undertaking  to  stay 
execution  had  been  given.  iSn.  March  11,  1872.  Am'd. 
1S95    59. 

Cal.  Rep.  Cit  52,  449;  54,521;  71,  61i6;  72,  160;  77,  83; 
78,  104;  81,  245;  81,  246;  89,  69;  89,  155;  96,  1S3; 
100,  336;  107,  143;  109,  G03;  109,  C05;  110,  403;  114, 
61;  119,  348;  119,  349;  126,  458;  126,  466;  128,  671;  129, 
158;    129,   159;    136,   &2Q;    144,   633;    147,  141. 

§  955.  Effect  of  disiaissal.  The  dismissal  of  an  appeal 
is  in  effect  an  affirmance  of  the  judgment  or  order  appealed 
from,  unless  the  dismissal  is  expressly  made  without  pre- 
judice  to  another  appeal.     En.  March   11,  1872. 

Cal.   Eep.   Cit.   54,   521;    80,   171;   97,   253;    128,   576. 

§  956.  What  may  be  reviewed  on  appeal  from  judgment. 
Upon  an  appeal  from  a  judgment,  the  court  may  review  the 
verdict  or  decision,  and  any  intermediate  order  or  decision 
excepted  to,  which  involves  the  merits,  or  necessarily  af- 
fects the  judgment,  except  a  decision  or  order  from  which 
an  appeal  might  have  been  taken.  En.  March  11,  1872. 
Am'd.   1875-6,   92. 

Cal.  Kep.  Cit.  51,  111;  53,  550;  54,  546;  56,  11;  61,  195; 
64,  623;  67,  200;  67,  205;  67,  273;  67,  410;  68,  338; 
68,  339;  69,  632;  70,  607;  76,  302;  77,  105;  84,  531; 
84,  532;  99,  410;  116,  72;  130,  509;  131,  612;  134,  243; 
135,  132;  137,  244;  140,  486;  145,  569. 
Prac.  Act,  sec.  345.  En.  April  29,  1851. 
Cal.   Eep.   Cit.   34,  301;    35,   359;    07,   410;    91,   C19. 


379  APPEiVLS  IN  GENERAL.  §§    957,  958 

§  957.  Remedial  powers  of  an  appellate  court.  When 
the  judgment  or  order  is  reversed  or  modified,  the  ap- 
pellate court  may  make  complete  restitution  of  all  prop- 
erty and  rights  lost  by  the  erroneous  judgment  or  order,  so 
far  as  such  restitution  is  consistent  with  protection  of  a 
purchaser  of  property  at  a  sale  ordered  by  the  judgment, 
or  had  under  process  issued  upon  the  judgment,  on  the 
appeal  from  which  the  proceedings  were  not  stayed;  and 
for  relief  in  such  cases  the  appellant  may  have  his  action 
against  the  respondent,  enforcing  the  judgment  for  the 
proceeds  of  the  sale  of  the  property,  after  deducting  there- 
from the  expenses  of  the  sale.  When  it  appears  to  the 
appellate  court  that  the  appeal  was  made  for  delay,  it  may 
add  to  the  costs  such  damages  as  may  be  just.  En.  March 
11,  1872.     Am'd.  1873-4,  340. 

Cal.  Rep.  Cit.     G4,  59;   79,  264;   79,  608;    80,  610;   91,  619 
95,  222;    95,   223;    97,  439;    105,   273;    106,  172;    120,  24 
124,  17,  125,  89;   128,  577;   129,  577;  131,  646;   137,  337 
137,  338;    137,   578;    137,   684;    139,   304;    139,  305;    143, 
109;    143,   113;    143,  114. 
Judgment  reversed:  Post,   sec.   966. 

Costs  on  appeal,  generally:  Post,  sec.  1034;  costs  below, 
etc.:  Post,  sees.  1022,  1039;  where  modification  of  judg- 
ment: Post,  sec.  1027,  subd.  2. 

§  958.  On  judgment  on  appeal,  remittitur  must  be  certi- 
fied to  the  clerk  of  the  court  below.  When  judgment  is 
rendered  upon  the  appeal,  it  must  be  certified  by  the  clerk 
of  the  supreme  court  to  the  clerk  with  whom  the  judg- 
ment-roll is  filed,  or  the  order  appealed  from  is  entered. 
In  cases  of  appeal  from  the  judgment,  the  clerk  with  whom 
the  roll  is  filed  must  attach  the  certificate  to  the  judgment- 
roll,  and  enter  a  minute  of  the  judgment  of  the  supreme 
court  on  the  docket,  against  the  original  entry.  In  cases 
of  appeal  from  an  order,  the  clerk  must  enter  at  length  in 
the  records  of  the  court  the  certificate  received,  and  minute 
against  the  entry  of  the  order  appealed  from,  a  reference 
to  the  certificate,  with  a  brief  statement  that  such  order 
has  been  affirmed,  reversed,  or  modified  by  the  supreme 
court  on  appeal.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  60,  619;  60,  621;  74,  106;  74,  107;  118,  114; 
140,  195;    140,   196. 

Prac.  Act,  sec.  358.    En.  April  29,  1851. 

Cal.  Rep.   Cit.     8,  518;    12,   468;    16,   423;    74,   108. 

Judgment  rendered  on  appeal:  Ante,  sees.  43.  45. 


§§  959,  963  ;>l?Tli;ALS    TO    SUPREME    COURT.  SW 

Remittitur:  Sees.  56,  958;  judgment  becomes  final  thirty 
days  after  it  is  filed:   See  Const.,  art  6,  sec.  2. 

§  959.  Provisions  of  this  chapter  not  applicable  to  ap- 
peals to  superior  courts.  The  provisions  of  this  chapter  do 
not  apply  to  appeals  to  superior  courts.  En.  March  11, 
1872.     Am'd.  1880,  7. 

Cal.   Rep.  Cit.     119,  439;    122,  576. 

Appeals  to  superior  courttj;  Tc-st,  sees.  974-980, 


CHAPTER  II. 

APPEAL^    TO    SUPREME    COVteT. 

[New  chapter  II,  superseding  the  original  chapter  n, 
was  adopted  March  26,  1880.    Amendments  1880,  p.  14.] 

§  963.    When    an   appeal    may   be   taken. 

§  964.     Appeals;    In    what    cases    appealed    from    justices'    cxmrta, 
§  96.5.     Appeals    by    executors    and    administrators. 

§  96«.    Acts    of    executors    and    administrators,    where    appolrtmeiit    va- 
cated. 

§  953.  When  an  appeal  may  be  taken.  An  appeal  may 
be  taken  to  the  supreme  court,  from  a  superior  court,  in 
the  following  cases: 

1.  From  a  final  judgment  entered  in  an  action,  or  special 
proceeding,  commenced  in  a  superior  court,  or  brought  into 
a  superior  court  from  another  idgturt; 

2.  From  an  order  granting  or  refusing  a  new  trial,  or 
granting  or  dissolving  an  injuncticE,  or  refusing  to  grant 
or  dissolve  an  injunction,  or  appointing  a  receiver,  or  dis- 
solving or  refusing  to  dissolve  an  attachment,  or  changing 
or  refusing  to  change  the  place  of  trial,  from  any  special 
order  made  after  final  judgment,  from  any  interlocutory 
judgment,  order,  or  decree  hereafter  made  or  entered  In 
actions  to  redeem  real  or  personal  property  from  a  mort- 
gage thereof,  or  lien  thereon,  determining  such  right  to 
redeem,  and  directing  an  accounting;  and  from  such  inter- 
locutory judgment  in  actions  for  partition  as  determines 
the  rights  and  interests  of  the  respective  parties,  and  di- 
rects partition  to  be  made; 

3.  From  a  judgment  or  order  granting  or  refusing  to 
grant,  revoking  or  refusing  to  revoke,  letters  testamentary. 


881  APPEALS   TO   SUPREME   COURT.  S   963 

or  of  administration,  or  of  guardianship;  or  admitting  or 
refusing  to  admit  a  will  to  probate,  or  against  or  in  favor 
of  the  validity  of  a  will,  or  revoking  or  refusing  to  revoke 
the  probate  thereof;  or  against  or  in  favor  of  setting  apart 
property,  or  making  an  allowance  for  a  widow  or  child;  or 
against  or  in  favor  of  directing  the  partition,  sale,  or  con- 
veyance of  real  property,  or  settling  an  account  of  an 
executor,  administrator,  or  guardian;  or  refusing,  allow- 
ing, or  directing  the  distribution  or  partition  of  an  estate, 
or  any  part  thereof,  or  the  payment  of  a  debt,  claim,  or 
legacy,  or  distributive  share;  or  confirming  or  refusing  to 
confirm  a  report  of  an  appraiser  or  appraisers  setting 
apart  a  homestead.  En.  March  11,  1872.  Am'd.  1880,  14; 
1889,  324;   1897,  209;    1899,  8;   1900-01,  85. 

Cal.  Eep.  Cit.  45,  245;  60,  412;  62,  616;  72,  489;  74,  218; 
91,  356;  98,  640;  99,  269;  112,  118;  116,  72;  138,  190; 
140,  467;  140,  514;  142,  629;  142,  682;  146,  32;  147, 
128;  147,  357;  147,  736.  Subd.  1—93,  651;  118,  256; 
122,  584;  125,  241;  181,  612;  183,  588;  135,  14;  135, 
182.  Subd.  2—56,  11;  65,  189;  77,  648;  78,  38;  82,  35; 
88,  315;  93,  413:  98,  638;  98,  689;  110,  40;  110,  57; 
111,  214;  119,  439;  119,  440;  122,  96;  130,  509;  184, 
122;  136,  676;  187,  56.  Subd.  3—56,  209;  00,  283;  65, 
838;  67,  457;  68,  133:  70,  149;  71,  323;  72,  488;  73, 
203;  74,  205;  74,  217;  75,  421;  80,  170;  82,  10;  82, 
162;  83,  326;  83,  619;  83,  620;  84,  598;  86,  59;  86, 
553;  88,  313;  88,  314;  90,  78;  94,  353;  98,  605;  102, 
657;  106,  431;  109,  646;  110,  567;  111,  271;  117,  507; 
118,  256;  119,  582;  120,  697;  121,  879;  121,  393;  128, 
811;  128,  312;  130,  344;  131,  429;  133,  222;  145,  87; 
145,  561. 
Frac.  Act,  sec.  347.  En.  April  29,  1851.  Am'd.  1854,  64; 
1863,  756;   1866,  707. 

Cal.   Eep.   Cit.   7,   253;   9,   19;    17,  517;    24,   337;   24,  448; 
28,  320;   31,  208;   31,  867;   83,   890;   83,  391;   33,  892; 
35,  290;  37,  23;  41,  642;  42,  114;  42,  390;  64,  623. 
Prob.  Act,  sec.  297.     En.  April  22,  1850.     Eep.  1851,  489. 
En.  1851,  448.     Am'd.   1855,  301;   1861,  654. 
Ca.  Eep.   Cit.  30,  111;  45,  259. 

Prob.  Act,  sec.  298.     En.  April  22,  1850.     Eep.  1851,  489. 
En.   1851,  448.     Am'd.   1855,  301. 
Cal.   Eep.   Cit.   34,   685. 

Prob.  Act,  sec.  299.     En.  April  22,  1850.     Eep.  1851,  489. 
En.  1851,  448.     Am'd.  1855,  801. 
Cal.  Eep.  Cit.  25,  514;  45,  260. 

Prob.  Act,  sec.  300.     En.  April  22,  1850.     Eep.  1851,  489. 
En.   1851,  448.     Am'd.   1855,  302. 
Cal.  Eep.  Cit.  25,  514;  84,  685. 


Iti  9M-966  APPEALS    TO    SUPT115ME    COURT.  Ml 

PVob.  Act,  sec.  301.  En.  April  22,  1S50.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1855,  302;   18G1,  C55. 

Api/eal  from  final  judgment:  Compare  sec.  939,  subd.  1, 
ance. 

Appeals  from  orders:   Compare  sec.  939,  subd.  3,  ante. 

Appeals  from  probate  decisions,  generally:  Post,  sees. 
1714,  1715;  special  administration,  granting,  no  appeal: 
Post.  sec.  1413. 

Appeals  in  criminal  cases:  See  sec.  52,  ante,  and  Pen. 
Code,  sees.  1237,  1238. 

§  964.  Appeals;  in  what  cases  appealed  from  Justices' 
courts.  The  foregoing  section  does  not  apply  in  cases  ap- 
pealed from  justices',  police,  or  other  inferior  courts,  ex- 
cept cases  of  forcible  entry  and  detainer,  and  cases  in- 
volving the  title  or  possession  of  real  property,  or  the 
legality  of  any  tax,  impost,  assessment,  toll,  or  municipal 
fine,  or  in  which  the  demand,  exclusive  of  interest,  or  the 
value  of  the  property  in  controversy,  amounts  to  three 
hundred    dollars.     En.   Stats.   1880,   15. 

Cal.   Rep.   Cit     58,  356;    110,  40;    119,  439. 

Appeals  to  superior  court:   Post,  sees.  974  et  seq. 

Forcible  entry  and  detainer,  concurrent  jurisdiction  of 
JuBtices'  courts:   Ante,  sec.  113,  subd.  1. 

§  965.  Appeals  by  executors  and  administrators.  When 
an  executor,  administrator,  or  guardian,  who  has  given 
an  official  bond,  appeals  from  a  judgment  or  order  of  the 
superior  court  made  in  the  proceedings  had  upon  the  es- 
tate of  which  he  is  executor,  administrator,  or  guardian, 
his  official  bond  shall  stand  in  the  place  of  an  undertaking 
on  appeal;  and  the  sureties  thereon  shall  be  liable  as  on 
such  undertaking.     En.  Stats.  1880,  15. 

Cal.  Rep.  Cit     80,  63;  88,  481;   89,  155;  102,  657;  127,  451. 

Probate  appeals:   Ante,  sec.  963,  subd.  3. 

§  966.  Acts  of  executors  and  administrators,  where  ap- 
pointment vacated.  When  the  judgment  or  order  appoint- 
ing an  executor,  or  administrator,  or  guardian.  Is  reversed 
on  appeal,  for  error,  and  not  for  want  of  jurisdiction  of  the 
court,  all  lawful  acts  in  administration  upon  the  estate 
performed  by  such  executor,  or  administrator,  or  guardian, 
if  he  have  qualified,  are  as  valid  as  if  such  judgment  or 
order  had  been  affirmed.  En.  March  11,  1872.  Am'd. 
1873-4,  340;  1880,  15. 


iSi  APPEALS    TO    SUPERIOR    COURTS.  J§  967-974 

Prac.  Act,  sec.  359.  En.  April  29,  1S51.   Am'd  1853,  277; 
1854,  65;  1854,  73;  1865-6,  846. 

Gal.  Kep.  Cit.  42,  51;  42,  60;  42,   72. 

Appointment   of   executor,   etc.,    j'ppeal    from;    Sec.    963, 
subd.  3. 
Restitution  on  reversal,  etc.:  Sec.  957. 

§§  967,  968.     No  such  sections. 

§  969.     En.    March   11,   1872.     Am'd.    1872-4,   341;    1877-8, 
104.     Rep.  1880,  64. 

Cal.  Rep.  Cit  50,  294;  51,  565;  54,  228;  55,  211;  55,  311; 
56,  408;  56.  409;  56,  410;  88,  314.  Subd.  5—61,  163. 
Subd.  8—88,  315. 

S  970.     En.   March   11,   1872.     Rep.   1880,  64. 
Cal.  Rep.  Cit.     61,  163. 

§  971.     En.    March    11,    1872.     Am'd.    1873-4,    341.    Rep. 

1880,  64. 


CHAPTER    III. 

[New  chapter  III,  superseding  the  original  chapter  III, 
was  adopted  March  26,  1880,  amendments  1880,  p.  14.] 

APPEALS  TO  SUPERIOR  COURTS. 

§  974.  Api)eaJ    from    judgment    of   Justice's    or   police   court. 

§  975.  Appeal    on    questions    of    law,    statement. 

§  '/IS.  Appeal    on    questions    of    fact,    or    law    and    fact. 

§  977.  Transmission    of    papers    to    appellate    court. 

§  978.  Undertaking    on    appeal. 

§  979.  Stay    of    proceedings    on    filing    undertaking. 

§  9S0.  Power  of  superior  court  on  appeal. 

§  974.  Appeal  from  judgment  of  justice's  or  police 
court.  Any  party  dissatisfied  with  a  judgment  rendered  in 
a  civil  action  in  a  police  or  justice's  court,  may  appeal 
therefrom  to  the  superior  court  of  the  county,  at  any  time 
within  thirty  days  after  the  rendition  of  the  judgment. 
The  appeal  is  taken  by  filing  a  notice  of  appeal  with  the 
justice  or  judge,  and  serving  a  copy  on  the  adverse  party. 
The  notice  must  state  whether  the  appeal  is  taken  from 
the  whole  or  a  part  of  the  judgment,  and  if  from  a  part. 


8§  975,  978  APPEALS    TO    SUPERIOR    COURTS.  M4 

what  part,  and  whether  the  appeal  Is  taken  on  questions 
of  law  or  fact,  or  both.  En.  March  11,  1872.  Am'd.  1880, 
15. 

Cal.  Rep.  Clt.     50,  510;   58,  178;   60,  803;   68,  25;   70,  528; 
71,  551;     72,  38;     79,  104;     86,  75;     88,  465;     88,    466; 
90,  371;    102,  180;    119,  439;    119,  440. 
Prac.  Act,  sec.  624.    En.  April  29,  1851.    Am'd.  1853,  280; 
1854,  70;    1854,  73. 
Cal.  Rep.  Clt.       9,  573. 
Prac.  Act,  sec.  640.     En.  April  29,  1851. 

Notice  of  appeal,  service  on  adverse  party:  See  eeos. 
1010  et  seq. 

§  975.  Appeal  on  questions  of  law,  statement.  When  a 
party  appeals  to  the  superior  court  on  questions  of  law 
alone,  he  must,  within  ten  days  from  the  rendition  of 
judgment,  prepare  a  statement  of  the  case  and  file  the 
same  with  the  justice  or  judge.  The  statement  must  con- 
tain the  grounds  upon  which  the  party  intends  to  rely  on 
the  appeal,  and  so  much  of  the  evidence  as  may  be  neces- 
sary to  explain  the  grounds,  and  no  more.  Within  ten 
days  after  he  receives  notice  that  the  statement  is  filed, 
the  adverse  party,  if  dissatisfied  with  the  same,  may  file 
amendments.  The  proposed  statement  and  amendments 
must  be  settled  by  the  justice  or  judge,  and  if  no  amend- 
ment be  filed,  the  original  statement  stands  as  adopted. 
The  statement  thus  adopted,  or  as  settled  by  the  Justice  or 
judge,  with  a  copy  of  the  docket  of  the  justice  or  judge, 
and  all  motions  filed  with  him  by  the  parties  during  the 
trial,  and  the  notice  of  appeal,  may  be  used  on  the  hear- 
ing of  the  appeal  before  the  superior  court  En.  March 
11,  1872.     Am'd.  1880,  16. 

Cal.  Rep.  Clt.     59,  474;   63,  485;   103,  139;   124,  470. 

Prac.  Act.  sec.  625.  En.  April  29,  1851.  Rep.  1853,  280. 
En.  1854,  70.  Am'd.  1855,  198. 

Cal.  Rep.  Cit.  8,  518;  9,  573;  19,  80. 

Settlement  of  statement  on  appeal:   Ante,  sec.  650. 

§  976.     Appeal    on    questions   of   fact,   or    law   and   fact. 

WTien  a  party  appeals  to  the  superior  court  on  questions  of 
fact,  or  on  questions  of  both  law  and  fact,  no  statement 
need  be  made,  but  the  action  must  be  tried  anew  in  the 
superior  court.     En.   March   11,  1872.     Am'd.   1880,   16. 

Cal.  Rep.  Clt.  59,  474;  65,  494;  68,  246;  106,  593;  124, 
469;    131.  218;    132,  701. 


£85  APPEALS  TO   SUPERIOR   COURTS.  8  8  »",  UTS 

Prac.  Act,  sec.  626.  En.  April  29,  1851.  Am'd.  1853,  280; 
1854,  70;  1854,  73. 

Cal.  Rep.  Cit.  8,  518. 

Conduct  of  trial:    Post,   sec.   980. 

§  977.  Transmission  of  papers  to  appellate  court.  Upon 
receiving  the  notice  of  appeal,  and  on  paj-raent  of  the 
fees  of  the  Justice  or  Judge,  payable  on  appeal  and  not 
Included  in  the  Judgment,  and  filing  and  undertaking  as 
required  in  the  next  section,  and  after  settlement  or  adop- 
tion of  statement,  if  any,  the  Justice  or  Ju-dge  must,  within 
five  days,  transmit  to  the  clerk  of  the  superior  court,  if 
the  appeal  be  on  questions  of  law  alone,  a  certified  copy 
of  hla  docket,  the  statement  as  admitted  or  as  settled,  the 
notice  of  appeal,  and  the  undertaking  filed;  or.  If  the  ap- 
peal be  on  questions  of  fact,  or  both  law  and  fact,  a  certi- 
fied copy  of  his  docket,  the  pleadings,  all  notices,  motions, 
and  all  other  papers  filed  in  the  cause,  the  notice  of  appeal, 
and  the  undertaking  filed;  and  the  Justice  or  Judge  may 
be  compelled  by  the  superior  court  by  an  order  entered 
upon  motion,  to  transmit  such  papers,  and  may  be  fined 
for  neglect  or  refusal  to  transmit  th3  sam6.  ^A  certified 
copy  of  such  order  may  be  served  on  the  justice  or  Judge 
by  the  party  or  his  attorney.  In  tne  superioi  court,  either 
party  may  have  the  benefit  of  all  legal  objection?  made  In 
the  Justice's  or  polIc#  court.  Bn.  March  11.  1872.  Am'd. 
1880,  16;    1897,  210. 

Cal.  Eep.  Cit.     59,  474;    8S,  432;    102,  179;    102,  180;    102, 
183;    124,  469. 

Prac.  Act,  sec.  627.     En.  April  29,  1851.     Am'd.  1853,  280; 
1854,  70;    1854,  73;    1855,  198. 

Cal.  Rep.  Cit.     5,  90;    8,  518;    9,  18;    9,  572;    9,  573;    25, 
211;   102,  181. 

§  978.  Undertaking  on  appeal.  An  appeal  from  a  jus- 
tice's  or  police  court  is  not  effectual  for  any  purpose,  un- 
less an  undertaking  be  filed  with  two  or  more  sureties  in 
the  sum  of  one  hundred  dollars  for  the  payment  of  the 
costs  on  the  appeal;  or,  if  a  stay  of  proceedings  be  claimed, 
in  a  sum  equal  to  twice  the  amount  of  the  judgment,  in- 
eluding  costs,  when  the  judgment  is  for  the  payment  of 
money;  or  twice  the  value  of  property,  including  costs, 
when  the  judgment  is  for  the  recovery  of  specific  personal 
Code  Civil  Proe.— 25. 


i  978  APPEALS    TO    S^CPERIOR    COURT6,  E8« 

property,  and  must  be  conditioned,  when  the  action  io  for 
the  recovery  of  money,  that  the  appellant  will  pay  the 
amount  of  the  judgment  appealed  from,  and  all  costs,  if 
the  appeal  be  withdrawn  or  dismissed,  or  the  amount  of 
any  judgment  and  all  costs  that  may  be  recovered  against 
him  In  the  action  In  the  superior  court.  When  the  ac- 
tion Is  for  the  recovery  of  or  to  enforce  or  foreclose  a  lien 
on  specific  personal  property,  the  undertaking  must  be  con- 
ditioned that  the  appellant  will  pay  the  Judgment  and  costs 
appealed  from,  and  obey  the  order  of  the  court  made 
therein.  If  the  appeal  be  withdrawn  or  dismissed,  or  any 
judgment  and  costs  that  may  be  recovered  against  him  in 
said  action  In  the  superior  court,  and  will  obey  any  order 
made  by  the  court  therein.  When  the  judgment  appealed 
from  directs  the  delivery  of  possession  of  real  property, 
the  execution  of  the  same  cannot  be  stayed  unless  a  writ- 
ten undertaking  be  executed  on  the  part  of  the  appellant, 
with  two  or  more  sureties,  to  the  effect  that  during  the 
possession  of  such  property  by  the  appellant,  he  will  not 
commit,  or  suffer  to  be  committed,  any  waste  thereon,  and 
that  If  the  appeal  be  dismissed  or  withdrawn,  or  the  judg- 
ment affirmed,  or  judgment  be  recovered  against  him  in 
the  action  in  the  superior  court,  he  will  pay  the  value  of 
the  use  and  occupation  of  the  property  from  the  time  of 
the  appeal  until  the  delivery  of  possession  thereof;  or  that 
he  will  pay  any  judgment  and  costs  that  may  be  recovered 
against  him  In  said  action  in  the  superior  court,  not  ex- 
ceeding a  sum  to  be  fixed  by  the  justice  of  the  court  from 
which  the  appeal  Is  taken,  and  which  sum  must  be  speci- 
fied in  the  undertaking.  A  deposit  of  the  amount  of  the 
Judgment,  Including  all  costs  appealed  from  or  of  the  value 
of  the  property,  including  all  costs  In  actions  for  the  re- 
covery of  specific  personal  property,  with  the  justice  or 
Judge,  is  equivalent  fo  the  filing  of  the  undertaking,  and 
In  such  cases,  the  justice  or  judge  must  transmit  the 
money  to  the  clerk  of  the  superior  court,  to  be  by  him 
paid  out  on  the  order  of  the  court.  The  adverse  party  may 
except  to  the  sufficiency  of  the  sureties  within  five  days 
after  the  filing  of  the  undertaking,  and  unless  they  or 
other  sureties  justify  before  the  justice  or  judge  within 
five  days  thereafter,  upon  notice  to  the  adverse  party,  to 
the  amounts  stated  in  their  affidavits,  the  appeal  must 
be  regarded  as  if  no  such  undertaking  had  been  given. 
En.  March  11,  1872.  Am'd.  1880,  16. 
Cal.  Rep.  Clt.  47,  606;  56,  83;  58,  178;  61,  338;  67,  69; 
67,  115;  68,  25;  71,  551;  86.  75;  8G.  76;  88,  465;  88, 
466;  90,  870;  90,  872;  98,  43;  102,  180;  106,  48;  113, 
442;  147,  178;  147,  174. 


SS7  APPEALS    TO    SUPERIOR    COURTS.  5§  979,  92J 

Prac.  Act,  sec.  628.     En.  April  29.  185L     Am'd.  1853,  280; 
1854,  70;  1854,  73;  1855,  198;  1860,  305. 

Cal.  Rep.  Cit    9,  573;   32,  50. 

Undertaking  on  appeal:   Compare    sec  941,  ante. 

Sureties,  justification:  Ante,  sec  948;  qualification:  Post, 
Bee  1057. 

§  979.    Stay  of  proceedings  on  filing  undertaking.     If  an 

execution  be  issued  on  the  filing  of  the  undertaking  stay- 
ing proceedings,  the  justice  or  judge  must,  by  order,  direct 
the  officer  to  stay  all  proceedings  on  the  same.  Such  offi- 
c«^r  must,  upon  payment  of  his  fees  for  services  rendered  on 
the  execution,  thereupon  lelinquish  all  property  levied  up- 
on, and  deliver  the  same  to  the  judgment  debtor,  to- 
gether with  all  moneys  collected  from  sales  or  otherwise. 
If  his  fees  be  not  paid,  the  officer  may  retain  so  much  of 
the  property  or  proceeds  thereof  as  may  be  necessary  to 
pay  the  same.    En.  March  11,  1872.    Am'd.  1880,  17. 

Cal.  Rep.  Cit.     56,  84;   58,  179;   90,  370;   98,  44;   136,  184. 

Prac.  Act,  sec.  629.     En.  April  29,  1851. 

§  980.  Powers  of  superior  court  on  appeal.  Upon  an 
appeal  heard  upon  a  statement  of  the  case,  the  superior 
court  may  review  all  orders  affecting  the  judgment  ap- 
pealed from,  and  may  set  aside,  or  confirm,  or  modify  any 
or  all  of  the  proceedings  subsequent  to  and  dependent  upon 
such  judgment,  and  may,  if  necessary  or  proper,  order  a 
new  trial.  When  the  action  is  tried  anew  on  appeal,  the 
trial  must  be  conducted  in  all  respects  as  other  trials  in 
the  superior  court.  The  provisions  of  this  code  as  to 
changing  the  place  of  trial,  and  all  the  provisions  as  to 
trials  in  the  superior  court,  are  applicable  to  trials  on  ap- 
peal in  the  superior  court.  For  a  failure  to  prosecute  an 
appeal,  or  unnecessary  delay  In  bringing  it  to  a  hearing, 
the  superior  court,  after  notice,  may  order  the  appeal  to 
be  dismissed,  with  costs;  and  if  it  appear  to  such  court 
that  the  appeal  was  made  solely  for  delay,  it  may  add  to 
the  costs  such  damages  as  may  be  just,  not  exceeding 
twenty-five  per  cent  of  the  judgment  appealed  from. 
Judgments  rendered  in  the  superior  court  on  appeal  shall 
have  the  same  force  and  effect,  and  may  be  enforced  in 
the  same  manner,  as  judgments  in  actions  commenced  in 
the  superior  court.     En.  March  11,  1872.     Am'd.  1880,  17. 

Cal.  Rep.  Cit.  50.  510;  59.  475;  65,  45;  65.  494;  66.  388; 
71,  557;  71,  582;  77,  307;  84,  9;  86,  432;  94,  356;  119, 
441;   124,  473. 


I  980  REPEAL,   OF   CERTAIN    CHAPTERS.  SSS 

Prac.  Act,  sec.  367.     En.  April  29,  1851.    Am'd.  1854,  66. 

CaL   Rep.  Cit     8,  518;    9,  573;    40,  647. 

Amendments:  Ante,  sec.  473. 

Trial  de  novo:  See  ante,  sec  97S. 

New  trial:   Ante.  sees.  656  et  seq. 

The  foregoing  sections  end  chapter  8,  which,  with 
chapter  2  of  title  13  of  part  2,  was  entirely  amended,  and  the 
foregoing  chapters,  2  and  3,  adopted  as  substitutes  there- 
for, by  act  approved  March  26,  1880;  Amendments  1880, 
14  (Ban.  ed.  52);  took  effect  immediately;  repealed  all 
acts  and  parts  of  acts  in  conflict  therewith. 


CHAPTERS  rV,  V. 

Chapters  4  and  5,  of  title  13  of  part  2,  and  each  and 
every  section  thereof,  relating  to  appeals  from  probate 
courts  and  appeals  to  county  courts,  were  repealed  by  act 
approved  April  15,  1880;  Amendments  1880,  64  (Ban.  e<L 
288). 

The  act  is  as  follows: 

An  act  to  repeal  chapters  four  and  five,  of  title  thirteen, 
of  part  two,  of  the  Code  of  Civil  Procedure,  and  each  and 
every  section  of  said  chapters  four  and  five,  relating  to 
appeals  In  civil  actions.     [Approved  April  15,  1880.] 

The  people  of  the  state  of  California,  represented  in 
senate  and  assembly,  do  enact  as  follows: 

§  1.  Chapters  four  and  five,  of  title  thirteen,  of  part  two, 
of  the  Code  of  Civil  Procedure,  and  each  and  every  sec- 
tion of  said  chapters  four  and  five  [sees.  969-980],  are  here- 
by repealed. 

§  2.  This  act  shall  take  effect  immediately. 


389  AGAINST     JOINT     DEBTORS.  S  ^^^ 

TITLE  XIV. 

OF  MISCELLANEOUS   PROVISIONS. 

Chapter  I.  Proceedings  Against  Joint  Debtors,  §§  989-994. 

II.  Offer  of  the  Defendant  to  Compromise,  §  997. 

in.  Inspection  of  Writings,  §   1000. 

rV.  Motions  and  Orders,  §§  1003-1007. 

v.  Notices,  and  Filing  and  Service  of  Papers,  SS 
1010-1017. 

VI.  Of  Costs,  §§  1021-1039. 

VII,  General  Provisions,   §§   1045-1059. 

CHAPTER  I. 

PROCEEDINGS    AGAINST    JOINT    DEBTORS. 

5  989.  Parties  not  summoned  In  action  on  Joint  contract  may  be  BUm- 

moned    after    judgment. 

§  9rw).  Summons   In   that   case,    what    to   contain,    and   how    serred. 

§  9;tl.  Affidavit    to    accompany    summons. 

§  992.  Answer,    when   filed   and   what   It  may   contain. 

§  993.  What   constitute   the   pleadings   In   the  case. 

§  994.  Issues,    how   tried.    Verdict,    what   to  be. 

§  989.  Parties  not  summoned  In  action  on  Joint  con- 
tract may  be  summoned  after  judgment.  When  a  judg- 
ment IS  recovered  against  one  or  more  of  several  persons, 
jointly  indebted  upon  an  obligation,  by  proceeding,  as 
provided  in  section  four  hundred  and  fourteen,  those 
who  were  not  originally  served  with  the  summons,  and 
did  not  appear  to  the  action,  may  be  summoned  to  show 
cause  why  they  should  not  be  bound  by  the  judgment  in 
the  same  manner  as  though  they  had  been  originally 
served  with  the  summons.    En.  March  11,  1872. 

Cal.  Rep.  Cit.    67.  26;    69,  458;    69,  621;    70,  114;    140,  550. 
Prac.  Act,  sec.  368.    En.  April  29,  1851. 
Cal.  Rep.  Cit.  39,  98. 

Cognate  provisions:   Ante,  sees.  383,  414,  579. 
Joinin'g  persons  severally  liable  upon  instrument:    Ante, 
sec.  383. 


8§  990-993  AGAINST     JOINT     DEBTORS.  SO 

Summons  served  on  one  defendant  out  of  several,  plain- 
tiff may  proceed  against  him  alone:   Ante,  see.  414. 

Judgment  against  some  defendants,  proceeding  continu- 
ing against  others:  Ante,  sec.  579. 

Release  of  one  joint  debtor  does  not  discharge  others: 
Civ.  Code,  sec.  1543. 

§  990.  Summons  in  that  case,  what  to  contain,  and  how 
served.  The  summons,  as  provided  in  the  last  section, 
must  describe  the  judgment,  and  require  the  person  sum- 
moned to  show  cause  why  he  should  not  be  bound  by  it, 
and  must  be  served  in  the  same  manner  and  returnable 
within  the  same  time  as  the  original  summons.  It  is  not 
necessary  to  file  a  new  complaint.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     140,  550. 

Prae.  Act,  sec.  369.     En.  April  29,  1851. 

Summons,  contents,  service,  etc.:  Ante,  sees.  407,  410  et 
seq. 

§  991.  Afladavlt  to  accompany  summons.  The  summons 
must  be  accompanied  by  an  affidavit  of  the  plaintiff,  hi^ 
agent,  representative,  or  attorney,  that  the  judgment,  or 
some  part  thereof,  remains  unsatisfied,  and  must  specify 
the  amount  due  thereon.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     140,  550. 

Prac.  Act,  sec.  370.     En.  April  29,  1851. 

§  992.    Answer,   when   filed   and   what   it    may    contain. 

Upon  such  summons,  the  defendant  may  answer  within 
the  time  specified  therein,  denying  the  judgment,  or  set- 
ting up  any  defense  which  may  have  arisen  subsequently; 
or  he  may  deny  his  liability  on  the  obligation  upon  which 
the  judgment  was  recovered,  except  a  discharge  from  such 
liability  by  the  statute  of  limitations.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     140,  550. 

Prac.  Act,  sec.  371.     En.  April  29,  1851. 

Answer,  generally:  Ante,  sec.  437. 

§  993.    What  constitute  the  pleadings  in  the  case.    If  the 

defendant,  in  his  answer,  deny  the  judgment,  or  set  up 
any  defense  which  may  have  arisen  subsequently,  the  sum- 
mons, with  the  affidavit  annexed,  and  the  answer,  con- 
stitute the  written  allegations  in  the  case;  if  he  deny  his 
liability  on  the  obligation  upon  which  the  judgment  was 
reeovered,  a  copy  of  the  original  complaint  and  judgment, 


501  OFFER    TO    COMPROMISES.  J  5  994,  997 

the  summons,  with  the  affidavit  annexed,  and  the  answer, 
constitute  such  written  allegations.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     140,  550. 

Prac.  Act,  sec.  37?.     En.  April  29,  1851. 

§  994.     Issues,    how    tried.     Verdict,    wliat    to    be.     The 

issues  formed  may  be  tried  as  in  other  cases;  but  when 
the  defendant  denies,  in  his  answer,  any  liability  on  the 
obligation  upon  which  the  judgment  was  rendered,  if  a  ver- 
dict be  found  against  him  it  must  be  for  not  exceeding 
the  amount  remaining  unsatisfied  on  such  original  judg- 
ment, with  interest  theron.    En.  March  11.  1872. 

Cal.  Rep.  Cit.     67,  26;     69,  458;    140,  550;    140,  553. 

Prac.  Act.  sec.  373.    En.  April  29,  1951. 

Cal.  Rep.  Cit     39,  98. 

Trial.  Ante,  sees.  607^S45. 


CHAPTER  II. 

OFFER  OF  THK  DEFENDANT  TO  OOMPROMISE. 

§  997.    Proceedings  on   offer   of  the  defendant  to  compromise  after  siilt 
brought. 

§  997.  Proceedings  on  offer  of  tlie  defendant  to  com- 
promise after  suit  brought.  The  defendant  may,  at  any 
time  before  the  trial  or  judgment,  serve  upon  the  plaintiff 
an  offer  to  allow  judgment  to  be  taken  against  him  for  the 
sum  or  property,  or  to  the  effect  therein  specified.  If  the 
plaintiff  accept  the  offer,  and  give  notice  thereof,  within 
five  days,  he  may  file  the  offer,  with  proof  of  notice  of 
acceptance,  and  the  clerk  must  thereupon  enter  judg- 
ment accordingly.  If  the  notice  of  acceptance  be  not 
given,  the  offer  is  to  be  deemed  withdrawn,  and  cannot  be 
given  in  evidence  upon  the  trial;  and  if  the  plaintiff  fail 
to  obtain  a  more  favorable  judgment,  he  cannot  recover 
costs,  but  must  pay  the  defendant's  costs  from  the  time  of 
the  offer.     En.  March  11,  1872.     Am'd.  1873-4,  341. 

Cal.  Rep.  Cit.     CI,  71;    61,  253;    61,  258;    72,  395;    84.  215; 
107,  322. 

Prac.  Act,  sec.  390.     En.  April  29,  1851. 
Offer,  not  an  admission:   Post,  sec.  2078;   equivalent  to 
tender:   Post,  sec.  2074. 

Judgment,  by  confession:  Pdfet,  sec.  1132. 


5  1000  INSPECTION    OF    WRITINOa 


CHAPTER  riL 

INSPECTION    OF    WRITINGS. 

S  1000.    A    party    may    demand    Inspection    and    copy    of   a    book,    paper, 

elc. 

S  1000.  A  party  may  demand  Inspection  and  copy  of  a 
book,  paper,  etc.  Any  court  in  which  an  action  is  pending, 
or  a  ju;!ge  thereof,  may,  upon  notice,  order  either  party  to 
give  to  the  other,  within  a  specified  time,  an  inspection  and 
copy,  or  permission  to  take  a  copy,  of  entries  of  accounts 
in  any  book,  or  of  any  document  or  paper  in  his  posses- 
sion, or  under  his  control,  containing  evidence  relating 
to  the  merits  of  the  action,  or  the  defense  therein.  If 
compliance  with  the  order  be  refeused,  the  court  may 
exclude  the  entries  of  accounts  of  the  book,  or  the  docu- 
ment, or  paper  from  being  given  in  evidence,  or  if  wanted 
as  evidence  by  the  party  applying,  may  direct  the  jury  to 
presume  them  to  be  such  as  he  alleges  them  to  be;  and 
the  court  may  also  punish  the  narty  refusing  for  a  con- 
tempt. This  section  is  not  to  be  conr-trued  to  prevent  a 
party  from  compelling  another  to  produce  books,  papers, 
or  documents,  when  he  is  examined  as  a  witness.  En. 
March  11,  1872.     Am'd.  1873-4,  342;    1880,  72. 

Oal.  Rep.  Cit.     105,  613;    105,  620;    126,  239;    136,  337; 
144,  421. 

Prac.  Act,  sec.  446.     En.   A.pril  29,  1851. 

Cal.  Rep.  Cit.     9,  38. 

Items  of  an  account:   Ante,  sec.  454. 
Compelling   production   of  books,   etc.:    Post,   sees.   1985 
et  seq.;   see,  also,  post,  sees.  1938,  1939. 
Contempt:   Post,  sees.  1209  et  seq. 


398  MOTIONS    AND    ORDERS.  SS  1W3-1U0J 


CHAPTER   IV. 

MOTIONS    AND    ORDERS. 

5  loos.  Order   and    motion    deflne^^. 

§  1004.  Motions    and    orders,    where    made. 

§  1005.  Notice   of   motion,    at   what    time   to   be   grlven. 

§  1008.  Transfer  of   motions   and   orders    to   show   cause. 

§  1007.  Order    for    payment    of    money,    how    enforced. 

8  1003.  Order  and  motion  defined.  Every  direction  of 
a  court  or  judge  made  or  entered  in  writing,  and  not  In- 
cluded in  a  judgment,  Is  denominated  an  order.  An  ap- 
plication for  an  order  is  a  motion.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  63,  508;  80,  170;  83,  135;  83,  232;  98,  640; 
99.  514;  117,  240;  119,  440;  126,  278;  132,  326;  133,  363; 
144,  100;  147,  128. 

Prac.  Act,  sec.  515.    En.  April  29,  1851. 

Cal.    Rep.    CIt.    27.   889. 

Order,  vacating:  Ante,  sec.  937;  enforcement:  Ante,  sec. 
128,  subd.  4;  renewing,  application  for:  Ante,  sees.  182,  183; 
final,  effect  of  as  estoppel:  Post,  sec.  1908. 

Motion,  notice  of:  Post,  sec.  1005;  heard  before  court 
commissioners:  Ante,  sec.  259,  subd.  1. 

§  1004.  iVIotions  and  orders,  wliere  made.  Motions 
must  be  made  in  the  county,  or  city  and  county.  In  which 
the  action  is  pending.  Orders  made  out  of  court  may  be 
made  by  the  Judge  of  the  court  In  any  part  of  the  state. 
En.  March  11,  1872.    Am'd.  1880.  12. 

Cal.  Rep.  CIt.     68.  641;   99,  518. 

Prac.  Act.  sec.  516.    En.  April  29,  1851. 

Cal.  Rep.  CIt.     80,  564;   86.  691. 

Power  of  judge  at  chambers:  Ante.  sees.   165,   166,   176. 

Court  commissioner's  control  of  ex  parte  motions:  Ant©, 
sec.  259,  subd.  1. 

§  1005.  Notice  of  motion,  at  what  time  to  be  given. 
When  a  written  notice  of  a  motion  Is  necessary.  It  must 
be  given,  if  the  court  be  held  in  the  same  county,  or  city 
and  county,  with  both  parties,  five  days  before  the  time 
appointed  for  the  heanng;  otherwise,  ten  days.  When  the 
notice  Is  served  by  mall,  the  number  of  days  before  the 


S  1006,  1007  MOTIONS    AND    ORDERS.  S94 

hearing  must  be  Increased  one  day  for  every  twenty-five 
miles  of  distance  between  the  place  of  deposit  and  the 
place  of  service;  such  Increase,  however,  not  to  exceed 
In  all  thirty  days;  but  In  all  cases  the  court,  or  a  Judge 
thereof,  may  prescribe  a  shorter  time.  En.  March  11,  1872. 
Am'd.   1880,   13. 

Cal.  Rep.  CIt.     75,  268;  75,  264;  80,  376;  98,  322;  99,  825; 
118,  591;    129,  650. 

Prac.  Act,  sec.  517.    En.  April  29,  1851;  1853,  278. 

Cal.   Rep.  Cit.    48,  451. 

Written,   notice   must   be:  Post,    sec.   1010;    order   made 
without  notice:   Ante,  sec.  937. 
Service,  of  papers,  generally:  Post,  sees.  1010  et  seq. 

§  1006.  Transfer  of  motions  and  orders  to  show  cause. 
When  a  notice  of  motion  Is  given,  or  an  order  to  show 
cause  Is  made  returnable,  before  a  Judge  out  of  court,  and 
at  the  time  fixed  for  the  motion,  or  on  the  return  day  of 
the  order,  the  Judgo  is  unable  to  hear  the  parties,  the 
matter  may  be  transferred  by  the  order  of  some  other 
Judge,  before  whom  it  might  originally  have  been  brought. 
En.    March   11,   1872. 

Cal.    Rep.    Clt.     64,    438. 

Prac.  Act,  sec.  518.     En.  April  29,  1851. 

Notice  of  motion:  Ante,  sec.  1005. 

^  1007.  Order  for  payment  of  money,  how  enforced. 
Whenever  an  order  for  the  payment  of  a  sum  of  money  is 
made  by  a  court,  pursuant  to  the  provisions  of  this  code. 
It  may  be  enforced  by  execution  In  the  same  manner  as 
If  It  were  a  Judgment    En.  March  11,  1872. 

Cal.  Pep.  Cit.     68,  328;    S8,  331;   75.  28;    79.  514;    79,  602; 
79,  603;  128,  187;  129,  888. 

Enforced  by  execution:  Aate,  aecs.  681  «t  seo.;  con- 
tempt: Post,  sees.  1209  et  seq. 


gas  NOTICES,    SISRVICE    OF    PAPERS.  H  1010,  lOU 


CHAPTER  V. 

NOTICES,    AND    FILING    AND    SERVICB3   OF    PAPERS. 

5  1010.    Notices   and   papers,    how   served. 

§  1011.    When   and    how   served. 

§  1012.     Service   by   mall,    when. 

§  1013.     Service   by   mall,    how. 

§  1014.     Appearance.     Notices    after    appearance. 

§  1015.    Service     on     nonresidents.    Where     a   party     has     an     attorney, 

service   shall   be   on   such    attorney. 
§  1016.    Preceding  provisions  not  to  apply  to  proceeding  to  bring  party 

into   contempt. 
§  1017.    Service   by   telegraph. 

§  1010.  Notices  and  papers,  how  served.  Notices  must 
be  in  writing,  and  notices  and  other  papers  may  be  served 
upon  the  party  or  attorney  in  the  manner  prescribed  in  this 
chapter,  when  not  otherwise  provided  by  this  code.  En. 
March    11.    1872. 

Cal  Rep.  Clt.  58,  96;  63,  580;  66,  470;  66,  471;  89,  40; 
94,  444;  95,  367;  97,  526;  99,  176;  118,  297;  122,  211; 
129,    358;    136,    366. 

Prac.  Act,  sec.  519.    En,  April  29,  1851. 

Cal.  Rep.  Clt.    80,  183. 

§  1011.  When  and  how  served.  The  service  may  be 
personal,  by  delivery  to  the  party  or  attorney  on  whom  the 
service  Is  required  to  be  made,  or  it  may  be  as  follows: 

1.  If  upon  an  attorney,  it  may  be  made  during  his  ab- 
sence from  his  office,  by  leaving  the  notice  or  other  papers 
with  his  clerk  therein,  or  with  a  person  having  charge 
thereof;  or  when  there  is  no  person  in  the  office,  by 
leaving  them  between  the  hours  of  eight  in  the  morning 
and  six  in  the  afternoon,  in  a  conspicuous  place  in  the 
office;  or  if  It  be  not  open  so  as  to  admit  of  such  service, 
then  by  leaving  them  at  the  attorney's  residence,  with 
some  person  of  suitable  age  and  discretion;  and  if  his 
residence  be  not  known,  then  by  putting  the  same,  inclosed 
In  an  envelope,  into  the  postofflce,  directed  to  such  attor- 
ney; 

2.  If  upon  a  party.  It  may  be  made  by  leaving  the  notice 
or  other  paper  at  his  residence,  between  the  hours  of 
eight  in  the  morning  and  six  in  the  evening,  with  some 
person  of  suitable  age  and  discretion;   and  if  his  residence 


S§  1012,  ion  NOTICES,     SERVICE    OF    PAPERS.  CM 

be  not  known,  by  putting  the  same,  inclosed  in  an  envelope. 
Into  the  postoflace,  directed  to  such  party.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.     46,  651;   49.  511;   58,  189;   63,  580;   67,  454; 
73,    538;    75,   2G3;    75,   2C4;    94,   444;    94,   639;    94,   64U; 
129,  190;   131,  289;  136,  366.     Subd.  1—61,  467;   65,  59; 
76,    620;    119,    108;    122,    211;     142,    604.     Subd.   a— <jl, 
467;    76,    626. 
Prac.  Act,  sec.  520.     En.  April  29,  1851. 
Cal.   Rep.   Cit.     24,  96;    28,   154;    34,   660. 
Service,  on  attorney:  Post,  sec.  1015. 
Duty  of  sheriff   sei-ving  to  exhibit:   See   Pol.   Code,   sec. 
4188. 

Coroner  to  serve  when  sheriff  a  party:  See  Pol.  Code, 
sec.   4191. 

Elisor    may    be   appointed    to    execute,    when:  See    Pol. 
Code,   sec.    4192. 
Justification  of  sheriff:   See  Pol.  Code,  sec.  4187. 

§  1012.  Service  by  mail,  wlien.  Service  by  mail  may  be 
made,  where  the  person  making  the  service,  and  the  person 
on  whom  it  is  to  be  made,  reside  or  have  their  offices  in 
different  places,  between  which  there  is  a  regular  communi- 
cation by  mail.     En.  March  11,  1872.     Am'd.  1873-4,  343. 

Cal.  Rep.  Cit.  46,  651;  61,  508;  63,  122;  63,  580;  65,  222; 
83,  575;    83,  576;    94,  639;   94,  640;    129,  190. 

Prac.  Act,  sec.  521.    En.  April  29,  1851. 

Cal.  Rep.  Cit.    24,  96;   30,  183;   SO,  184. 

I  1013.  Service  by  mail,  how.  In  case  of  service  by 
mail,  the  notice  or  other  paper  must  be  deposited  in  the 
postoffice,  addressed  to  the  person  on  whom  it  is  to  be 
served,  at  his  office  or  place  of  residence,  and  the  postage 
paid.  The  service  is  complete  at  the  time  of  the  deposit, 
but  if  within  a  given  number  of  days  after  such  service 
a  right  may  be  exercised,  or  an  act  is  to  be  done  by  the 
adverse  party,  the  time  within  which  such  right  may  be 
exercised  or  act  be  done  is  extended  one  day  for  every 
twenty-five  miles  distance  between  the  place  of  deposit  and 
the  place  of  address,  such  extension,  however,  not  to  ex- 
ceed ninety  days  in  all.  En.  March  11,  1872.  Am'd.  1873- 
4,  343. 

Cal.  Rep.  Cit.  61,  466;  61,  467;  61,  508;  63,  580;  65,  222; 
73,  308;  83,  575;  83,  576;  83,  577;  91,  587;  94,  640; 
U5,  621;   129,  190;   132,  263. 


337  NOTICES,    SERVICE    OF    PAPERS.  J§  1014-1015 

Prac.  Act,  sec.  522.     En.  April  29,  1851.     Am'd.  1861,  497. 
Cal.  Rep.  Cit.  24,  96;   30,  183;   30,  184. 
Distance:    Ante,    sec.    1005. 

§  1014.  Appearance.  Notices  after  appearance.  A  de- 
fendant appears  in  an  action  when  he  answers,  demurs, 
or  gives  the  plaintiff  written  notice  of  his  appearance,  or 
when  an  attorney  gives  notice  of  appearance  for  him. 
After  appearance,  a  defendant  or  his  attorney  is  entitled 
to  notice  of  all  subsequent  proceeding^  of  which  notice 
is  required  to  be  given.  But  where  a  defendant  has  not  ap- 
peared, service  of  notice  of  papers  need  not  be  made  upon 
him  unless  he  is  imprisoned  for  waat  of  bail.  En.  March 
U,   187i. 

Cal.  Rep.  Cit  55,  3;  56,  629;  63,  5S0;  67,  103;  75,  239; 
111,  522;  112,  632;  113,  305;  122,  450;  125,  300;  125, 
543;    132,  &3;    139,  717;   141,   8;    146,  573. 

Prac.  Act,  sec.   523.     En.  April  29,  1851. 

Cal.   Rep.   Cit  17,   517;    27,   293;    30,  183. 

Appearance,  waiver  of  summons:   Ante,  seca  40^,  416. 

Notice  of  subsequent  proceedings,  how  given:  Post,  sec 
1015. 

§  1015.  Service  on  nonresidents.  Wliere  a  party  haa 
an  attorney,  service  shall  be  on  such  attorney.  When  a 
plaintiff  or  a  defendant,  who  has  appeared,  resides  out  of 
the  state,  and  has  no  attorney  in  the  action  or  proceeding, 
the  service  may  be  made  on  the  clerk  for  him.  But  in  all 
cases  where  a  party  has  an  attorney  in  the  action  or  pro- 
ceeding, the  service  of  papers,  when  required,  must  be 
upon  the  attorney  instead  of  the  party,  except  of  subpoe- 
nas, of  writs,  and  other  process  issued  in  the  suit,  and  of 
papers  to  bring  him  into  contempt.     En.  March  11,  1872. 

Cal.  Rep.  Cit  63,  580;  65,  191;  70,  528;  86,  244;  119,  108; 
125,  662;    128,  244;    129,  190;    131,  289;    139,  717. 

Prac.  Act   sec.   524.     En.   April  29,  1851. 

Cal.  Rep.  Cit  30,  183;    39,  151. 

Attorney,  authority  of:  Ante,  sec.  283;  duties  of:  Ante, 
sec,  282;  disbarred,  when:   Ante,  sees.  287-299. 

Service,  how  made:   Ante,  sec.  1011. 

§  1016.  Preceding  provisions  not  to  apply  to  proceeding 
to    bring    party    into    contempt.     The   foregoing   provisions 


§  l«i7  KOTICBS.     SERVICE    OP    PAPERS.  398 

of  this  chapter  do  not  apply  to  the  service  of  a  summons 
or  other  process,  or  of  any  paper  to  bring  a  party  into 
contempt.     En.   March   11,   1872. 

Cal.   Rep.   Cit   63,   580;    65,   191;    125.   662. 

§  1017.  Service  by  telegtaph.  Any  summons,  writ,  or 
order,  in  any  civil  suit  or  proceeding,  and  all  other  papers 
requiring  service,  may  be  transmitted  by  telegraph  for 
service  in  any  place,  and  the  telegraphic  copy  of  such 
writ,  ot  order,  or*  paper,  so  transmitted,  may  be  served 
or  executed  by  the  officer  or  person  to  whom  it  is  sent  for 
that  purpose,  and  returned  by  him,  if  any  return  be  requi- 
site. In  the  sajae  manner,  and  with  the  same  force  and 
effect,  in  all  respects,  as  the  original  thereof  might  be  if 
delivered  to  him,  and  the  officer  or  person  serving  or  ex- 
ecuting the  same  has  the  same  authority,  and  is  subject  to 
the  same  liabilities,  as  if  the  copy  were  the  original.  The 
original,  when  a  writ  or  order,  must  also  be  filed  in  the 
court  from  which  it  was  issued,  and  a  certified  copy  thereof 
must  be  preserved  In  the  telegraph  office  from  which  it 
was  senL  In  sending  it,  either  the  original  or  the  certi- 
fied copy  may  be  used  by  the  operator  for  that  purpose. 
Whenever  any  document  to  be  sent  by  telegraph  bears  a 
seal,  either  private  or  official,  it  is  not  necessary  for  the 
operator,  in  sending  the  same,  to  telegraph  a  description 
of  the  seal,  or  any  words  or  device  thereon,  but  the  same 
may  be  expressed  in  the  telegraphic  copy  by  the  letters 
"L.  S."  or  by  ths  word  "seal"     En.   March  11,  1872. 


539  OF    COSTS.  S  1U2J 


CHAPTEE  VI. 

OF    COSTS. 

§  1021.     Compensation    of    attorneys.     Costs    to    parties. 

§  1022.    When    allowed,    of    course,    to    the    plaintiff. 

§  1023.  Several  actions  brought  on  a  single  cause  of  action  can  carry 
costs   In   but   one. 

§  1024.     Defendant's  costs  must  be  allowed,    of  course,    in   certain   cases. 

§  1025.     Costs,    when   in   the   discretion   of   the   court. 

§  1U26.  When  the  several  defendants  are  not  united  in  Interest,  costs 
may    be    severed. 

§  1027.    Costs  of  appeal   discretionary  with   the  court,    in   certain  cases. 

§  1028.     Referee's    fees. 

§  1029.    Continuance,    costs   may  be   imposed   as   condition    of. 

§  1030.     Costs    when    a    tender    is    made    before    suit    brought. 

§  1031.     Costs   in    action   by    or   against    an    administrator,    etc 

§  1032.     Costs    in   a   review    other   than   by   appeal. 

§  1033.     Filing   of,    an-d    affidavit,   to   bill    of   costs. 

§  1034.     Costs    on    appeal,    how    claimed    and    recovered. 

§  1035.  Interest  and  costs  must  be  Included  by  the  clerli  in  the  judg- 
ment. 

§  103€.  When  plaintiff  is  a  non-resident  or  foreign  corporation,  de- 
fendant  may   require   security   for  costs. 

$  1037.    If   such   security   be   not   given,    the    action    may   be   dismissed. 

§  1038.    Costs   when   state  is  a  party. 

5  1039.     Costs    when    county    Is   a   party. 

§  1021.     Compensation    of    attorneys.     Costs  to    parties. 

The  measure  and  mode  of  compensation  of  attorneys  and 
counselors  at  law  is  left  to  the  agreement,  express  or  im- 
plied, of  the  parties;  but  parties  to  actions  or  proceedings 
are  entitled  to  costs  and  disbursements,  as  hereinafter  pro- 
vided.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  63,  88;  63,  92;  90,  548;  93,  571;  117,  221; 
120,  452;  120,  454;  122,  54;  128,  155;  130,  236;  136, 
172;     140.    22. 

Prac.  Act,  sec.  494.     En.  April  29,  1851.     Am'd.  1853,  277; 
1853,    250. 

Foreclosure,  counsel  fees  on:    Post,  sec.  1500.     See  post, 
Appendix,  title  Mortgages. 

Action  on  fencing-bond,  counsel  fees:    Post,  sec.   1251. 

Mechanics'  liens^Costs  and  counsel  fees:  Post,  sec.  1195. 

Partition — Costs  and  counsel  fees:    Ante,  sees.  796,  798, 
801. 

Probate  matter — Attorneys'  fees:   Post,  sec.  1718. 
Casts  in  particular  actions:  See  particular  title. 


IS  1022,  1023  OF    COSTS.  U9 

§  1022.  When  allowed,  of  course,  to  the  plaintiff.  Costs 
are  allowed,  of  course,  to  the  plaintiff,  upon  a  judgment  in 
hla  favor,  in  the  following  cases: 

1.  In  an  action  for  the  recovery  of  real  property; 

2.  In  an  action  to  recover  the  possession  of  personal 
property,  where  the  value  of  the  property  amounts  to 
three  hundred  dollars  or  over;  such  value  shall  be  deter- 
mined by  the  jury,  court,  or  referee  by  whom  the  action  is 
tried; 

3.  In  an  action  for  the  recovery  of  money  or  damages, 
when  plaintiff  recovers  three  hundred  dollars  or  over; 

4.  In  a  special   proceeding; 

5.  In  an  action  which  involves  the  title  or  possession  of 
real  estate,  or  the  legality  of  any  tax,  impost,  assessment, 
toll,  or  municipal  fine.     En.  March  11,  1872. 

Cal.   Rep.   Cit.   72,  458;    120,  260;    120,  449;    123,  152;  123, 

163;    141,   95;    144,   433;    144,   547;    145,   455;    145,  456. 

Subd.  1—144,  432.     Subd.  3—64,  290;  86,  461;  120,  259; 

122,  223;   125,  49;  134,  42.     Subd.  5—74,  566;  130,  ^24; 
144,    432. 

Prac.  Act,  sec.  495.  En.  April  29,  1851.  Am'd.  1853,  2T7; 
1865-6,   847;    1869-70,   65. 

Costs,  discretionary,  when:    Post,  sees.  1025,  1027. 

Subd.  2.     Personal  property,  value:   Post,  sec.  1025. 

Subd.  3.     Money  or  damages:   Post,  sec.  1025. 

Subd.  4.  Special  proceeding,  generally:  Post,  sees.  1063- 
1821. 

Act  requiring  security  for  costs  in  libel  and  slander: 
See  post.  Appendix,  title  LibeL 

§  1023.  Several  actions  brought  on  a  single  cause  of 
action  can  carry  costs  in  but  one.  When  several  actions 
are  Drought  on  one  bond,  undertaking,  promissory  note, 
bill  of  exchange,  or  other  instrument  in  writing,  or  in 
any  other  case  for  the  same  cause  of  action,  against  sev- 
eral parties  who  might  have  been  joined  as  defendants 
in  the  same  action,  no  costs  can  be  allowed  to  the  plaintiff 
in  more  than  one  of  such  actions,  which  may  be  at  his 
election,  if  the  party  proceeded  against  in  the  other 
actions  were,  at  the  commencement  of  the  previous  action, 
openly  within  this  state;  but  the  disbursements  of  the 
plaintiff  must  be  allowed  to  him  in  each  action.  En.  March 
11,   1872. 


«01  OF    COSTS.  §§  1024-1028 

Prac.  Act,  sec.  496.     En.  April  2D,  1851. 
Several  parties,  who  might  have  been  joined  as  defend- 
ants:  Ante,  sec.  383. 

§  1024.  Defendants'  costs  must  be  allowed,  of  course,  in 
Certain  cases.  Costs  must  be  allowed,  of  course,  to  the 
defendant,  upon  a  judgment  in  his  favor  in  the  actions 
mentioned  in  section  ten  hundred  and  twenty-two,  and  in 
special  proceedigs.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  72,  458;  74,  566;  122,  223;  125,  49;  134,  42; 
138,  23;   144,  433. 

Prac.  Act,  sec.  497.    En.  April  29,  1851. 

Cal.  Rep.  Cit.     29,  282. 

Special  proceedings,  generally:   Sees.  1063-1821. 

§  1025.  Costs,  when  in  the  discretion  of  the  court.  In 
other  actions  than  those  mentioned  in  section  ten  hundred 
and  twenty-two,  costs  may  be  allowed  or  not,  and,  if  al- 
lowed, may  be  apportioned  between  the  parties,  on  the 
same  or  adverse  sides,  in  the  discretion  of  the  court;  but 
no  costs  can  be  allowed  in  an  action  for  the  recovery  of 
money  or  damages  when  th  plaintiff  recovers  less  than 
three  hundred  dollars,  nor  in  an  action  to  recover  the  pos- 
session of  personal  property,  when  the  value  of  the  prop- 
erty is  less  than  three  hundred  dollars.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.  65,  296;  68,  37;  72,  458;  96,  239;  101,  237; 
119,  357;  120,  259;  126,  149;  136,  6;  138,  23;  141,  95; 
144,  432;  144,  433;  144,  547;  145,  455;  145,  456;  145,  736. 

Prac.  Act,  sec.  498.  En.  April  29,  1851.  Am'd.  1865-6, 
847. 

Cal.  Rep.  Cit.  6,  287;  17,  339;   28,  566;   29,  282. 

§  1026.  When  the  several  defendants  are  not  united  in 
Interest,  cost  may  be  severed.  T\Tien  there  are  several 
defendants  in  the  actions  mentioned  in  section  ten  hun- 
dred and  twenty-two,  not  united  in  interest,  and  making 
separate  defenses  by  separate  answers,  and  plaintiff  fails 
tc  recover  judgment  against  all,  the  court  must  award 
costs  to  such  of  the  defendants  as  have  judgment  in  their 
favor.    En.  March  11,  1872. 

Prac.  Act,  sec.  499.     En.  April  29,  1851. 

Judgment   for    some    defendants:    Ante,    sec.    578, 

Costs  where  several  defendants:  Ante,  sec.  1023. 

Code  ClvU   Proo.— 26. 


{5   1027- lOM  OF   COSTS.  «BI 

§  1027.  Costs  of  appeal  discretionary  with  the  court,  in 
certain  cases.  In  the  following  cases,  the  costs  of  appeal  is 
larej    in    the   discretion   of   the   court: 

1.  When  a   new  trial  is  ordered; 

2.  When  a  judgment  is  modified.     En.   March  11,  1872. 
Prac.  Act,  sec.  500.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  29,  282. 

§  1028.  Referee's  fees.  The  fees  of  referees  are  five 
dollars  to  each  for  every  day  spent  in  the  business  of  the 
reference;  but  the  parties  may  agree,  in  writing,  upon  any 
other  rate  of  compensation,  and  thereupon  such  rate  shall 
bo  allowed.     En.   March   11,  1872. 

Cal.  Rep.  Cit.  52,  135;    140,  404. 

Prac.  Act,   sec.   504.     En.   April  29,  1851. 

Reference,  generally:   Ante,  sees.  C38-G45. 

Referees  in  partition,  compensation  of:  Ante,  sees.  768, 
79(5. 

Referees  in  probate:   Post,  sec.  1508. 

§  1029.  Continuance,  costs  may  be  imposed  as  condition 
of.  When  an  application  is  made  to  a  court  or  referee  to 
postpone  a  trial,  the  payment  of  costs  occasioned  by  the 
postponement  may  be  imposed,  in  the  discretion  of  the 
court  or  referee,  as  a  condition  of  granting  the  same.  En. 
March  11.  1872. 

Cal.   Rep.  Cit.  91,  588. 

Prac.  Act,  sec.  505.     En.  April  2r,  1851.     Ain'd.  1855,  251. 

Postponement,  generally:   Ante^  s-ecs.  595,  596. 

§  1030.  Costs  when  a  tender  is  made  before  suit 
broughto  When^  in  an  action  for  the  recovery  of  money 
only,  the  defendant  alleges  in  his  answer  that  before  the 
commencement  oi  the  action,  he  tendered  to  the  plaintiff 
the  full  amount  to  which  he  was  entitled,  and  thereupon 
deposits  in  court  for  plaintiff  the  amount  so  tendered,  and 
the  allegation  be  found  to  be  true,  the  plaintiff  cannot  re- 
cover costs,  but  n-ust  pay  costs  to  the  defendant.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  144,  117. 

Prac.  Act,  sec.  506.     En.  April  2S,  185L 

Tender:    Post,   sec.   2076. 

Offer  to  compromise:  Ante,  sec.  997. 


m  OP    COSTS.  {§  lOJl-1033 

§  1031.  Costs  in  action  by  or  against  an  administrator, 
etc.  In  an  action  prosecuted  or  defended  by  an  executor, 
administrator,  trustee  of  express  trust,  or  a  person  ex- 
pressly authorized  by  statute,  costs  may  be  recovered  as  in 
action  by  and  against  a  person  prosecuting  or  defending, 
in  his  own  right;  but  such  costs  must  by  the  judgment  be 
made  chargeable  only  upon  the  estate,  fund,  or  party  repre- 
sented, unless  the  court  directs  the  same  to  be  paid  by 
the  plaintiff  or  defendant,  personally,  for  mismanagement 
or  bad  faith  in  the  action  or  defense.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  93,  572;  99,  479;  103,  253;  126,  371;  128,  337. 

Prac.  Act,  sec.  507.     En.  April  29,  1851. 

Costs  against  executor,  etc.:   Post,  sec.  1509. 

§  1032.  Costs  in  a  review  otiier  than  by  ajjpeal.  When 
the  decision  of  a  court  of  inferior  jurisdiction  in  a  special 
proceeding  is  brought  before  a  court  of  higher  jurisdiction 
for  a  review,  in  any  other  way  than  by  appeal,  the  same 
costs  must  be  allowed  as  in  cases  on  appeal,  and  may  be 
collected  by  execution,  or  in  such  manner  as  the  court 
may  direct,  according  to  the  nature  of  the  case.  En.  March 
11,  1872. 

Prac.  Act,  sec.  508.    En.  April  29,  1851. 

Special  proceedings,  generally:    Post,   sees.   1063-1821. 

Costa  on  appeal:    Ante,  sec.  1027;    post,  sec.   1034. 

§  1033.  Filing  of,  and  affidavit  to,  bill  of  costs.  The 
party  in  whose  favor  judgment  is  rendered,  and  who  claims 
his  costs,  must  deliver  to  the  clerk,  and  serve  upon  the  ad- 
verse party,  within  five  days  after  the  verdict  or  notice  of 
the  decision  of  the  court  or  referee,  or,  if  the  entry  of  the 
judgment  on  the  verdict  or  decision  be  stayed,  then  before 
such  entry  is  made,  a  memorandum  of  the  items  of  his 
costs  and  necessary  disbursements  in  the  action  or  pro- 
ceeding, which  memorandum  must  be  verified  by  the  oath 
of  the  party,  or  his  attorney  or  agent,  or  by  the  clerk  of  his 
attorney,  stating  that  to  the  best  of  his  knowledge  and  be- 
lief the  items  are  correct,  and  that  the  disbursements  have 
been  necessarily  incurred  in  the  action  or  proceeding.  A 
party  dissatisfied  with  the  costs  claimed,  may,  within  five 
days  after  notice  of  filing  of  the  bill  of  costs,  file  a«motion 
to  have  the  same  taxed  by  the  court  in  which  the  judgment 


J  J  10S4-1036  OF    COSTS.  Ml 

was  rendered,  or  by  the  judge  thereof  at  chambers.  By 
the  decision  of  the  court  or  referee,  herein  referred  to, 
is  meant  the  signing  and  filing  of  the  findings  of  fact  and 
conclusions  of  law.  En.  March  11,  1872.  Am'd.  1873-4,  343; 
1899.  22. 

Cal.  Rep.  Cit.  57,  231;  59.  583;  63.  55;  69.  561;  71,  260;  71, 
261;  90,  337;  90,  563;  95,  644;  106,  205;  108.  286;  110, 
620;   120,  127;  129,  245;   130,  300;   130,  390;   134,  640. 

Prac.  Act,  sec.  510.     En.  April  29,  1851.     Am'd.  1855.  251. 

Cal.  Rep.  Cit.  11,  341;  16.  418;  24,  352;  24,  353;  28,  420; 
30,  547;   64,  590;   71,  259;   71,  260;   71,  261;   129,  245. 

S  1034.  Costs  on  appeal,  how  claimed  and  recovered. 
Whenever  costs  are  awarded  to  a  party  by  an  appellate 
court,  if  he  claims  such  costs,  he  must,  within  thirty  days 
after  the  remittitur  is  filed  with  the  clerk  below,  deliver 
to  such  clerk  a  memorandum  of  his  costs,  verified  as  pre- 
scribed by  the  preceding  section,  and  thereafter  he  may 
have  an  execution  therefor  as  upon  a  judgment  En.  March 
11,  1872. 

Cal.   Rep.   Cit.   59,  583;    74,   107;    118,  114. 
Remittitur:   Ante,  sec.  958. 

§  1035.     Interest  and  costs  must  be  included  by  the  clerk 

In  the  judgment.  The  clerk  must  include  in  the  judgment 
entered  up  by  him,  any  interest  on  the  verdict  or  decision 
of  the  court,  from  the  time  it  was  rendered  or  made,  and 
the  costs,  if  the  same  have  been  taxed  or  ascertained;  and 
he  must,  within  two  days  after  the  same  are  taxed  or 
ascertained,  if  not  included  in  the  judgment,  insert  the 
same  in  a  blank,  left  m  the  judgment  for  that  purpose,  and 
must  make  a  similar  insertion  of  the  costs  in  the  copies 
and  docket  of  the  judgment.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  71,  260;  71,  261;  82,  185;  88.  394;  90,  386; 
95,  143;  108.  286;  128.  575;   130,  390;   141,  697. 

Prac.  Act,  sec.  511.  En.  April  1829,  1851.  Am'd.  1861,  494. 

Cal.  Rep.  Cit.  28,  420;  30,  547;  33,  678;  71,  259;  71,  260. 

§  1036-  When  plaintiff  is  a  nonresident  or  foreign  cor- 
poration, defendant  may  require  security  for  costs.  When 
the  plaintiff  In  an  action  or  special  proceeding  resides  out 
of  the  state,  or  is  a  foreign  corporation,  security  for  the 
costs  afid  charges,  which  may  be  awarded  against  such 
plaintiff,   may    be   required   by  the   defendant.     When   re- 


406  OF     CXDST3.  §§  1037-1033 

quired,  all  proceedings  in  the  action  or  special  proceeding 
must  be  stayed  until  an  undertaking,  executed  by  two  or 
more  persons,  is  filed  with  the  clerk,  to  the  effect  that 
they  will  pay  such  costs  and  charges  as  may  be  awarded 
against  the  plaintiff  by  judgment,  or  in  the  progress  of 
the  action  or  special  proceeding,  not  exceeding  the  sum  of 
three  hundred  dollars.  A  new  or  an  additional  under- 
taking may  be  ordered  by  the  court  or  judge,  upon  proof 
that  the  original  undertaking  is  insufficient  security,  and 
proceedings  in  the  action  or  special  proceeding  stayed  until 
such  new  or  additional  undertaking  is  executed  and  filed. 
En.  March  11,  1872.     Am'd.  1903,  187. 

Cal.  Rep.  Cit  56,  251;  62,  42;  93,  509;  118,  660;  118,  661; 
118,  662;   118,  663;   137,  449. 

Prac.  Act,  sec.  512.     En.  April  29,  1851. 

Qualification  of  sureties:   Post,  sec.  1057. 

§  1037.  If  such  security  be  not  given,  the  action  may  be 
dismissed.  After  lapse  of  thirty  days  from  the  service 
of  notice  that  security  is  required,  or  of  an  order  for  new 
or  additional  security,  upon  proof  thereof,  and  that  no 
undertaking  as  required  has  been  filed,  the  court  or  judge 
may  order  the  action  or  special  proceeding  to  be  dismissed. 
En.   March  11,   1872.     Am'd.   1903. 

Cal.  Rep.  Cit.  93,  509;   118,  661;   137,  449. 

Prac.  Act,  sec.  514.     En.  April  29,  1851. 

§  1038.  Costs  when  state  is  a  party.  When  the  state  is 
a  party,  and  costs  are  awarded  against  it,  they  must  be 
paid  out  of  the  state  treasury.    En.  March  11,  1872. 

Cal.  Rep.  Cit  116,  494;  145,  767. 

No  security  required  of  state:   Post,  sec.  1058. 

J  1039.  Costs  when  county  is  a  party.  When  a  county 
Is  a  party,  and  costs  are  awarded  against  it,  they  must  be 
I>aid  out  of  the  county  treasury.     En.  March  11,  1872. 

CaL  Rep.  Cit  106,  205;  116,  494. 

No  security  required  of  county:   Post,  sec.  1058. 


a  1046-1011  GENERAL    PROVISIONS.  §» 

CHAPTER  VII, 

GENERAL,    PROVISIONS. 

6  1045.  Lost    papers,    how    supplied. 

I  1046.  Papers   without   the   title   of   the   action,    or   with   defective   title, 

may    be    valid. 

§  1047.  Successive   actions   on    the   same  contract,    etc. 

§  1048.  Consolidation    of    several    actions    into    one. 

§  1049.  Actions,    when   \1ecmed    pending. 

8  1050.  Actions    to    determine    adverse    claims,    and    by    sureties. 

8  1051.  Testimony,    when    to    be    taken   by    the    clerk. 

B  1062.  The   clerk    must   keep   a   register   of   actions. 

5  1053.  Two    of    three    referees,    etc.,    may    do    any    act. 

5  1054.  The   time   within   an   act    Is   to   be   done   may   be   extended. 

§  1065.  Actions    against    a    sheriff    for    official    acts. 

§  1056.  Corporations    may    become    sureties    on    undertakings    and    bonds. 

I  1057.  Undertakings    mentioned    In    this    code,    requisites    of. 

S  1058.  People    of    state    not    required    to    give    bonds    when    state    is    a 

party. 

8  1059.  Surety    on    appeal    substituted    to    rights    of    judgment    creditor. 

§  1045.  Lost  papers,  how  supplied.  If  an  original  plead- 
ing or  paper  be  lost,  the  court  may  authorize  a  copy  thereof 
to  be  filed  and  used  instead  of  the  original.  En,  March 
11.  1872. 

Cal.  Rep.  Cit.  93,  608;   110,  190;    137,  272, 

Lost  certificates  of  deposit,  statute  relating  to  actions 
on:   See  post,  Appendix,  title  Statute  of  Limitations. 

6  1046.  Papers  without  the  title  of  the  action,  or  with 
defective  title,  may  be  valid.  An  affidavit,  notice,  or  other 
paper,  without  the  title  of  the  action  or  proceeding  In 
which  It  Is  made  or  with  a  defective  title,  is  as  valid  and 
effectual  for  any  purpose  as  if  duly  entitled,  if  it  intelligibly 
refer  to  such  action  or  proceeding.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  67,  122;  95,  417;  100,  335;  101,  122. 

Prac.  Act,  sec.  531.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  3,  97. 

S  1047.  Successive  actions  on  the  same  contract,  etc. 
Successive  actions  may  be  maintained  upon  the  same  con- 
tract or  transaction,  whenever,  after  the  former  action,  a 
new  cause  of  action  arises  therefrom.    En.  March  11,  1872. 

Prac.   Act,   sec.   525.     En.   April  29,   1851. 

jLctlon  defined:  Ante,  sec.  22. 


407  GENF:RAL     provisions.  89  104S-1O53 

§  1048.  Consolidation  of  sevepal  actions  Into  one. 
"Whenever  two  or  more  actions  are  pending  at  one  time  be- 
tween the  same  parties  and  in  the  same  court,  upon  causes 
of  action  which  might  have  been  joined,  the  court  may  or- 
der the  actions  to  be  consolidated.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  66,  73;   80,  324;    126,  650. 

Prac.  Act,  sec.  526.     En.  April  29,  1851. 

§  1049.     Actions,  when   deemed   pending.     An    action    Is 
deemed  to  be  pending  from  the  time  of  its  commencement 
until  its  final  determination  upon  appeal,  or  until  the  time 
for  appeal  has  passed,  unless  the  judgment  Is  sooner  satis- 
fied.    En.  March  11,  1872. 
Cal.  Rep.  Cit.   55,  320;    67,  331;   89,  541;   91,  431;    97,  550; 
97,  552;    99,  88;   99,  89;   99,  475;   99,  476;   99,  627;   100, 
42;   100,  646;  110,  504;   113,  63;   119,  257;   120,  24;   123, 
23;  124,  428;  125.  89;  129,  650;  130,  599;  131,  646;  134, 
468;    134,  469;    137,  144;    137,  145;    143,  113;    143,  226; 
143,    235;    143,    633. 

5  1050.  Actions  to  determine  adverse  claims,  and  by 
sureties.  An  action  rray  be  brought  by  one  person  against 
another  for  the  purpose  of  determining  an  adverse  claim, 
which  the  latter  makes  against  the  former  for  money  or 
property  upon  an  alleged  obligation;  and  also  against  two 
or  more  persons,  for  the  purpose  of  compelling  one  to  sat- 
isfy a  debt  due  to  the  other,  for  which  plaintiff  is  bound  aa 
a  surety.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  92,  420;  96.  101;  117,  436;  121,  351;  132,  158; 
136,  29;    187,  114;    138,  559;    145,  193. 

Prac.  Act,  sec.  527.     En.  April  29,  1861. 

Cal.  Rep.  Cit.  5,  84;   24,  165;   24,  166. 

Quieting  title  to  realty:  Ante,  sees.  738  et  seq. 

Surety  may  compel  principal  to  perform  obligation:  See 
ClV.  Code,  sec.  2846. 

§  1051.     Testimony,  when  to  be  tai<en  by  the  clertc.     On 

the  trial  of  an  action  in  a  court  of  record,  if  there  is  no 
shorthand  reporter  of  the  court  in  attendance,  either  party 
may  require  the  clerk  to  take  down  the  testimony  In  writ- 
ing.    En.  March  11,  1872. 
Cal.  Rep.  Cit.  121,  669. 

§  1052.     The  clerk  must  keep  a  register  of  actions.     The 

clerk  must  keep  among  the  records  of  the  court  a  register 
of  actions.     He  must  enter  therein  the  title  of  the  action, 


J§   10:,3,  lOM  GENKRAT,    PROVISIONS.  «« 

with  brief  notes  under  it,  from  time  to  time,  of  all  papers 
filed  and  proceedings  had  therein.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     99,  514;    126,  649. 

Prac.  Act,  sec.  528.     En.  April  29,  1851. 

Records  of  the  court:  Ante,  sees.  668,  672,  683. 

§  1053.     Two   of   three   referees,   etc.,    may    do    any    act. 

When  there  arc  throe  referees,  or  three  arbitrators,  all  must 
meet,  but  two  of  them  may  do  any  act  which  might  be 
done  by  all.     En.  March  11,  1872. 

Prac.  Act,  sec.  529.     En.  April  29,  1851. 

References  and  trials  by  referees:  Ante,  sees.  638-645. 

Arbitrations,  generally:  Post,  sees.  1281-1290. 

§  1C54.  The  time  within  which  an  act  is  to  be  done  may 
be  extended.  When  an  act  to  be  done,  as  provided  in  this 
code,  relates  to  the  pleadings  in  the  action,  or  the  under- 
takings to  be  filed,  or  the  justification  of  sureties,  or  the 
preparation  of  statements,  or  of  bills  of  exceptions,  or  of 
amendments  thereto,  or  to  the  service  of  notice  other  than 
of  appeal,  the  time  allowed  by  this  code  may  be  extended, 
upon  good  cause  shown,  by  the  judge  of  the  superior  court 
in  and  for  the  county  in  which  the  action  is  pending,  or  by 
the  judge  who  presided  at  the  trial  of  said  action;  but  such 
extension  shall  not  exceed  thirty  days,  without  the  consent 
of  the  adverse  party;  except  that  when  it  appears  to  the 
judge  to  whom  said  application  is  made,  that  the  attorney 
of  record  for  the  party  applying  for  said  extension  is 
actually  engaged  in  attendance  upon  a  session  of  the  legis- 
lature of  this  state,  as  a  member  thereof;  in  which  case  it 
shall  be  the  duty  of  said  judge  to  extend  said  time  until 
said  session  of  the  legislature  adjourns,  and  thirty  days 
thereafter.  En.  March  11,  1872.  Am'd.  1873-4,  344;  1880, 
7;   1889,  45;    1895,  12. 

Cal.  Eep.  Cit.  57,  503;  57,  632;  61,  506;  64,  463;  64,  540; 
65,  236;  67,  602;  68,  487;  68,  488;  68,  489;  70,  391;  71, 
584;  74,  105;  83,  320;  83,  644;  83,  645;  84,  539;  86,  76; 
89,  612;  91,  491;  99,  480;  129,  280;  129,  691;  134,  49; 
135,  661;  136,  557;  138,  52;  147,  720. 

Prac.  Act,  sec.  530.     En.  April  29,  1851.     Am'd.  1861,  591. 

Cal.  Rep.  Cit.  27,  112;  27,  113;  27,  114;  27,  338;  28,  240; 
32,  350;    43,  321;    43,  322. 

Time,  extension  of:  Ante,  sec.  473. 

Computation  of  time:  See  ante,  see.  12. 


«09  GENERAL    PROVISIONS.  §§  1055,  1056 

S  1055.  Actions  against  a  sheriff  for  official  acts.  If 
an  action  be  brought  against  a  sheriff  for  an  act  done  by 
virtue  of  his  office,  and  he  give  written  notice  there- 
of to  the  sureties  on  any  bond  of  indemnity  received  by 
him,  the  judgment  recovered  therein  shall  be  conclusive 
evidence  of  his  right  to  recover  against  such  sureties;  and 
the  court  may,  on  motion,  upon  notice  of  five  days,  order 
judgment  to  be  ordered  up  against  them  for  the  amount  so 
recovered,  including  costs.  En.  March  11,  1872.  Ara'd. 
1880,  73. 

Cal.  Rep.  Cit.  102,  279;  102,  280;   102,  281;   102,  282;   142, 
207. 

Prac.  Act,  sec.  645.    En.  April  29,  1851. 


;;   ;0,-,3.   10B4  GEXKRAT-    PROVlPIdNS.  «W 

with  brief  notes  under  it,  from  time  to  time,  of  all  papers 
filed  and  proceedings  had  therein.     En.  March  11,  1872. 

Cal.  Ecp.  Cit.     99,  514;    126,  649. 

Prac.  Act,  sec.  528.     En.  April  29,  1851. 

Eecords  of  the  court:  Ant€,  sees.  668,  672,  683. 

§  1053.     Two   of   three   referees,    etc.,    may    do    any    act. 

When  there  arc  three  referees,  or  three  arbitrators,  all  must 
meet,  but  two  of  them  may  do  any  act  which  might  be 
done  by  all.     En.  March  11,  1872. 

Prac.  Act,  sec.  529.     En.  April  29,  1851. 

Eeferences  and  trials  by  referees:  Ante,  sees.  638-645. 

Arbitrations,  generally:  Post,  sees.  1281-1290. 


C.  0.  P.,  1906. 

§  1054.  When  an  act  to  be  done,  as  provided  in  this  code, 
relates  to  the  pleadings  in  the  action,  or  the  undertakings 
to  be  filed,  or  the  justifications  of  sureties,  or  the  prepara- 
tion of  statements,  or  of  bills  of  exceptions,  or  of  amend- 
ments thereto,  or  to  the  service  of  notices  other  than  of 
appeal,  the  time  allowed  by  this  code  may  be  extended,  upon 
good  cause  shown,  by  the  judge  of  the  superior  court  in  and 
for  the  county  in  which  the  action  is  pending,  or  by  the 
judge  who  presided  at  the  trial  of  said  action;  but  such  ex- 
tension shall  not  exceed  thirty  days,  without  the  consent 
of  the  adverse  party;  except  that  when  it  appears  to  the 
judge  to  whom  said  application  is  made  that  the  attorney  of 
record  for  the  party  applying  for  said  extension  is  actually 
engaged  in  attendance  upon  a  session  of  the  legislature  of 
this  state,  as  a  member  thereof;  in  whick  case  it  shall  be 
the  ^ty  of  said  judge  to  extend  said  time  until  said 
session  of  the  legislature  adjourns,  and  thirty  days  there- 
after: provided,  however,  that  from  and  after  the  passage 
of  this  act  to  and  including  the  twenty-eighth  day  of  Feb- 
ruary, nineteen  hundred  and  seven,  the  judge  shall  have 
power  to  extend  the  foregoing  time  as  to  any  matter  enumer- 
ated in  this  section  for  not  exceeding  ninety  days,  and 
shall  also  have  power  during  said  period  to  extend  by  or- 
der, for  not  exceeding  ninety  days,  the  time  for  filing  and 
serving  notices  of  appeal  and  for  the  performance  of  any 
act  in  any  action  or  special  proceeding  required  by  this 
code  to  be  done  wiihiu  a  specified  time.  [In  effect  June 
3,  1905.] 


409  GENERAL    PROVISIONS.  55  1055,  1056 

S  1055.  Actions  against  a  sheriff  for  official  acts.  If 
an  action  be  brought  against  a  sheriff  for  an  act  done  by 
virtue  of  his  ofRce,  and  he  give  written  notice  there- 
of to  the  sureties  on  any  bond  of  indemnity  received  by 
him,  the  judgment  recovered  therein  shall  be  conclusive 
evidence  of  his  right  to  recover  against  such  sureties;  and 
the  court  may,  on  motion,  upon  notice  of  five  days,  order 
judgment  to  be  ordered  up  against  them  for  the  amount  so 
recovered.  Including  costs.  En.  March  11,  1872.  Am'd. 
1880,  73. 

Cal.  Rep.  Cit.  102,  279;   102,  280;   102,  281;   102,  282;   142, 
207. 

Prac.  Act,  sec.  645.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  21,  442;   28,  102. 

§  1056.  Corporations  may  become  sureties  on  undertak- 
ings and  bonds.  In  all  cases  where  an  undertaking  or 
bond,  with  any  number  of  sureties,  is  authorized  or  required 
by  any  provision  of  this  code,  or  of  any  law  of  this  state, 
any  corporation  with  a  paid-up  capital  of  not  less  than  one 
hundred  thousand  dollars,  incorporated  under  the  laws  of 
this  or  any  other  state  of  the  United  States  for  the  purpose 
of  making-,  guaranteeing,  or  becoming  a  surety  upou  bonds 
or  undertakings  required  or  authorized  by  law,  or  which, 
by  the  laws  of  the  state  where  it  was  originally  incorpo- 
rated has  such  power,  and  which  shall  have  complied  with 
all  the  requirements  of  the  law  of  this  state  regulating  the 
formation  or  admission  of  these  corporations  to  transact 
such  business  in  this  state,  may  become  and  shall  be  ac- 
cepted as  security  or  as  sole  and  sufficient  surety  upon  such 
undertaking  or  bond,  and  such  corporate  surety  shall  be 
subject  to  all  the  liabilities  and  entitled  to  all  the  rights  of 
natural  persons'  sureties;  provided,  that  the  insurance 
commissioner  shall  have  the  same  jurisdiction  and  powers 
to  examine  the  affairs  of  such  corporations  as  he  has  in 
other  cases;  shall  require  them  to  file  similar  statements 
and  issue  to  them  a  similar  certificate.  And  whenever  the 
liabilities  of  any  such  corporation  shall  exceed  its  assets, 
the  insurance  commissioner  shall  require  the  deficiency 
to  be  paid  up  In  sixty  days,  and  if  it  is  not  so  paid  up, 
then  he  shall  issue  a  certificate  showing  the  extent  of  such 
deficiency,  and  he  shall  publish  the  same  once  a  week  for 
three  weeks,  in  a  daily  San  Francisco  paper.  And,  until 
Buch   deficiency   la  paid   up,   such   company   shall    not    do 


§  1057  GENERAL    PROVISIONS.  410 

business  in  this  state.  In  estimating  the  condition  of  any 
such  company,  the  commissioner  shall  allow  as  assets  only 
such  as  are  allowed  under  existing  laws  at  the  time,  and 
shall  charge  as  liabilities,  in  addition  of  eighty  per  cent  of 
the  capital  stock,  all  outstanding  indebtedness  of  the  com- 
pany, and  a  premium  reserve  equal  to  fifty  per  centum  of 
the  premiums  charged  by  said  company  on  all  risks  then 
in  force.  En.  March  11,  1872.  Rep.  1880,  111.  En.  1889, 
215. 

Cal.  Rep.  Cit.  95,  599;  95,  600;  97,  355;  97,  357;  97.  359. 

Prac.  Act,  sec.  646.  En.  April  29,  1851.  Am'd.  1857,  29; 
1862,  567. 

The  act  of  March  12,  1885,  Stats.  1885,  p.  114,  permitted 
a  corporation  to  act  as  sole  surety:  See  post,  Appendix, 
title  Bonds. 

§  1057.  Undertakings  mentioned  in  this  code,  requisites 
of.  In  any  case  where  an  undertaking  or  bond  is  author- 
ized or  required  by  any  law  of  this  state,  the  officer  taking 
the  same  must,  except  in  the  case  of  such  a  corporation  as 
is  mentioned  in  the  next  preceding  section,  require  the 
sureties  to  accompany  it  with  an  affidavit  that  they  are 
each  residents  and  householders,  or  freeholders,  within  the 
state,  and  are  each  worth  the  sum  specified  in  the  under- 
taking or  bond,  over  and  above  all  their  just  debts  and  lia- 
bilities, exclusive  of  property  exempt  from  execution;  but 
when  the  amount  specified  in  the  undertaking  or  bond  ex- 
ceeds three  thousand  dollars,  and  there  are  more  than  two 
sureties  thereon,  they  may  state  in  their  affidavits  that  they 
are  severally  worth  amounts  less  than  the  amount  speci- 
fied in  the  undertaking  or  bond,  if  the  whole  amount  be 
equivalent  to  that  of  two  sufficient  sureties.  Any  corpora- 
tion such  as  is  mentioned  in  the  next  preceding  section, 
may  become  one  of  such  sureties.  No  such  corporation 
shall  be  accepted  in  any  case  as  a  surety  whenever  its  lia- 
bilities shall  exceed  its  assets  as  ascertained  in  the  manner 
provided  in  section  ten  hundred  and  fifty-six.  En.  March 
11,  1872.     Am'd.  1889,  216. 

Cal.  Rep.  Cit  52,  448;   97,  355;   97,  356;   97,  358;   97,  359; 
106,  46;  122,  208;  128,  669. 

Prac.  Act,  sec.  513.     En.  April  29,  1851. 

Prac.  Act.  sec.  567.    En.  April  29,  1851.    Am'd.  1871-2,  190, 

Applied  to  guardians:  Post  sec.  1809. 


m  GENKRAL    PROVISIONS.  §8   1058.  1059 

§  1058.  People  of  state  not  required  to  give  bonds 
when  state  is  a  party.  In  any  civil  action  or  proceeding 
wherein  the  state,  or  the  people  of  the  state,  is  a  party 
plaintiff,  or  any  state  officer,  in  his  official  capacity,  or  in 
behalf  of  the  state,  or  any  county,  city  and  county,  city,  or 
town,  is  a  party  plaintiff  or  defendant,  no  bond,  written 
undertaking,  or  security  can  be  required  of  the  state,  or 
the  people  thereof,  or  any  officer  thereof,  or  of  any  county, 
city  and  county,  city,  or  town;  but  on  complying  with  the 
other  provisions  of  this  code,  the  state,  or  the  people  there- 
of, or  any  state  officer  acting  in  his  official  capacity,  have 
the  same  rights,  remedies,  and  benefits  as  if  the  bond, 
undertaking,  or  security  were  given  and  approved  as  re- 
quired by  this  code.    En.  March  11,  1872.    Am'd.  1880,  76. 

Cal.  Rep.  Cit.  6C,  346;  60,  347;  78,  445;  111,  273;  116,  493; 
120,  304;    130,  61;   137,  373;    137,  374;   141,  357. 

Costs  against  state  or  county:  Ante,  seca.  1038,  1039. 

§  1059.  Surety  on  appeal  substituted  to  rights  of  Judg- 
ment creditor.  Whenever  any  surety  on  an  undertaking 
on  appeal,  executed  to  stay  proceedings  upon  a  money 
judgment,  pays  the  judgment,  either  with  or  without  ac- 
tion, after  its  affirmation  by  the  appellate  court,  he  is  sub- 
stituted to  the  rights  of  the  judgment  creditor,  and  is  en- 
titled to  control,  enforce,  and  satisfy  such  judgment  in  all 
respects  as  if  he  had  recovered  the  same.  En.  Stats.  1873- 
4,  344. 

Cal.  Rep.  Cit.  67,  243;    117,  6. 


PART  III. 

OF  SPECIAL  PROCEEDINGS  OF  A  CIVIL  NATUHB. 

Preliminary  Provisions,  §§  1063-1064. 

Title  I.     Of   Writs   of   Review,   Mandate   and    Prohibition, 
§§  1067-1110. 
II.     Of  Contesting  Certain  Elections,  §§   1111-1127. 

III.  Of  Summary  Proceedings,  §§  1132-1179. 

IV.  Of  the  Enforcement  of  Liens,  §§  1180-1207. 

V.  Of  Contempts,  §§  1209-1222. 

VI.  Of    the    Voluntary    Dissolution    of    Corporations, 

§§  1227-1234. 

VIL  Of  Eminent  Domain,  §§   1237-1264. 

VIII.  Of  Escheated  Estates,  §§  1269-1272. 

IX.  Of  Change  of  Name,  §§  1275-1279. 

X.  Of  Arbitrations,  §§  1281-1290. 

XI.  Of  Proceedings  in  Probate  Courts,  §§  1294-1810. 

XII.  Of    Sole    Traders,    §§    1811-1821. 

XIII.  Of  Proceedings  in  Insolvency,  §  1822. 

PRELIMINARY     PROVISIONS. 

5  1063.     Parties,    how   designated. 

§  1064.    Judgment   and   order   same  meaning   as    in   civil   aetlotni. 

§  1063.  Parties,  how  designated.  The  party  prosecut- 
ing a  special  proceeding  may  be  known  as  the  plaintiff,  and 
the  adverse  party  as  the  defendant.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  92,  248;  141,  98. 

Plaintiff  and  defendant:  Ante,  sec.  308. 

§  1064.  Judgment  and  order  same  meaning  as  In  civil 
actions.  A  judgment  in  a  special  proceeding  is  the  final 
determination  of  the  rights  of  the  parties  therein.  The 
definitions  of  a  motion  and  an  order  in  a  civil  action  are 
applicable  to  similar  acts  in  a  special  proceeding.  En. 
March  11,  1872. 

Judgment,  definition  of:  Ante,  sec.  577. 
Motion  and  order:  Ante,  sec.  1003. 

(41» 


413  WRIT    OF    REVIKW.  S5  1067,  1068 

TITLE  I. 

OP  WRITS  OF  REVIEW,  MANDATE  AND  PROHIBITION. 

Chapter  I.  Writ  of  Review,  §  §  1067-1077. 

II.  Writ  of  Mandate,  §  §  1084-1097. 

III.  Writ  of  Prohibition,  §  §  1102-1105. 

IV.  Writs   of   Review,   Mandate,     and    Prohibition 

May  Issue  and  be  Heard  at  Chambers,  §  1108. 
V.    Rules  of  Practice  and  Appeals,  §  §  1109-1110. 

CHAPTER  I. 

WRIT    OP    REVIEW. 

5  1067.  Writ    of   review    defined. 

§  1068.  When   and    by    what   courts   granted. 

§  1069.  Application    for,    how    made. 

§  1070.  The   writ   to   be   directed  to   the   Inferior  trfbunal,    etc. 

§  1071.  Contents   of   the   writ. 

§  1072.  Proceedings    in    inferior   court   may    b«   stayed,    or   not. 

§  1073.  Service   of   the   writ. 

§  1074.  The   review   under  the   writ,    extent   of. 

8  1075.  A    defective    return    of    the    writ    may    be    perfected.    Hearing 

and   judgment. 

§  1076.  Copy  of  Judgmeat  must  be  sent  to  the  inferior  trlbtmal. 

§  1077.  Judgment-rolls. 

§  1067.  Writ  of  review  defined.  The  writ  of  certiorari 
may  be  denominated  the  writ  of  review.  En.  March  11, 
1872.     Am'd.  1873-4,  345. 

Cal.  Rep.  Cit  141,  617. 

Prac.  Act,  sec.  455.    En.  April  29,  1851. 

§  1068.  When  and  by  what  courts  granted.  A  writ  of 
review  may  be  granted  by  any  court,  except  a  police  or 
justice's  court,  when  an  inferior  tribunal,  board,  or  officer, 
exercising  judicial  functions,  has  exceeded  the  jurisdiction 
of  such  tribunal,  board,  or  officer,  and  there  is  no  appeal, 
nor,  in  the  judgment  of  the  court,  any  plain,  speedy,  and 
adequate  remedy.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  53,  393;  53,  550;  54,  376;  54,  604;  58,  361; 
59,  701;  60,  290;  65,  189;  71,  323;  74,  219;  84,  644; 
96,  119;  97,  326;  101,  17;  108,  305;  109,  526;  110,  57; 
113,  668;  120,  514;  124,  277;  127,  419;  131,  280;  138, 
429;  140,  2;  140,  514;  141,  318;  141,  617;  144,  506; 
145,  475. 
Prac.  Act,  sec.  456.  En.  April  29,  185L 
Cal.  Rep.  Cit.  3,  249;  5,  478;  14,  496;  16,  213;  21,  169; 
25,  96;  29,  635;  42,  254;  42,  255;  43,  26;  43,  367;  47,  605. 


S§  1063-1072  vmn  of   REVIETW.  Ai 

Certiorari,  extent  of  review  on:   Post,  sec.  1074. 

Supreme  court  is  always  open  for  issuing  tliis  writ:  Ante, 
sec.  47. 

Court  commissioners,  power  to  hear  and  determine  ex 
parte  motions  for  writ:    Ante,  sec.   259. 

Returnable — Writ  may  be  made  returnable  at  any  time: 
Post,  sec.  1108.     See  post,  sec.  1070. 

§  1069.  Application  for,  how  made.  The  application 
must  be  made  on  affidavit  by  the  party  beneficially  inter- 
ested, and  the  court  may  require  a  notice  of  the  applica- 
tion to  be  given  to  the  adverse  party,  or  may  grant  an 
order  to  show  cause  why  it  should  not  be  allowed,  or  may 
grant  the  writ  without  notice.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  53,  392;  71,  237;  87,  175;  131,  365;  136.  687; 
144,   508. 

Prac.  Act,  sec.  457.    En.  April  29,  1851. 

Issuance:   See  supreme  court  rule  26. 

§  1070.  The  writ  to  be  directed  to  the  Inferior  tribunal, 
etc.  The  writ  may  be  directed  to  the  inferior  tribunal, 
board,  or  officer,  or  to  any  other  person  having  the  custody 
of  the  record  or  proceedings  to  be  certified.  When  directed 
to  a  tribunal,  the  clerk,  if  there  be  one,  must  return  the 
writ  with  the  transcript  required.     En.  March  11,  1872. 

Cal.  Rep.  Cit  61,  627;  75,  372;   113,  671;   143,  172. 

Prac.  Act,  sec.  458.    En.  April  29,  1851. 

§  1071.  Contents  of  the  writ.  The  writ  of  review  must 
command  the  party  to  whom  it  is  directed  to  certify  fully 
to  the  court  issuing  the  writ,  at  a  specified  time  and  place, 
a  transcript  of  the  record  and  proceedings  (describing  or 
referring  to  them  with  convenient  certainty),  that  the  same 
may  be  reviewed  by  the  court;  and  requiring  the  party,  in 
the  meantime,  to  desist  from  further  proceedings  in  the 
matter  to  be  reviewed.    En.  March  11,  1872. 

Cal.  Rep.  Cit  54,  322;  61,  55;   143,  172. 

Prac  Act,  sec.  459.     En.  April  29,  1851. 

§  1072.  Proceedings  in  inferior  court  may  be  stayed,  or 
not.  If  a  stay  of  proceedings  be  not  intended,  the  words 
requiring  the  stay  must  be  omitted  from  the  writ;  these 
words  may  be  inserted  or  omitted,  in  the  sound  discretion 


415  WRIT    OF    REVIEW.  55  1073- X076 

of  the  court,  but  if  omitted,  the  power  of  the  inferior  court 
or  officer  is  not  suspended  or  the  proceedings  stayed.  En. 
March  11.  1872. 

Prac.  Act,  sec.  460.    En.  April  29,  1851, 

§  1073.  Service  of  the  writ.  The  writ  must  be  served 
in  the  same  manner  as  a  summons  in  civil  action,  except 
when  otherwise  expressly  directed  by  the  court.  En.  March 
11,  1872. 

Prac.  Act,  sec.  461.    En.  April  29,  185L 

Service   of  writ,   on   public   tribunal,   etc.,   and  proof   of 
same:  Supreme  court  rule  28. 
Service  of  summons:  Ante,  sees.  410  et  seq. 

§  1074.  The  review  under  the  writ,  extent  of.  The  re- 
view upon  this  writ  cannot  be  extended  further  than  to  de- 
termine whether  the  inferior  tribunal,  board,  or  officer  has 
regularly  pursued  the  authority  of  such  tribunal,  board, 
or  officer.    En.  March  11,  1872. 

Cal.  Rep.  Cit  54,  286;  97,  326;  111,  273;  113,  668;  136,  367. 

Prac.  Act,  sec.  462.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  25,  96;  29,  635;  43,  367. 

§  1075.  A  defective  return  of  the  writ  may  be  perfected. 
Hearing  and  judgment.  If  the  return  of  the  writ  be  de- 
fective, the  court  may  order  a  further  return  to  be  made. 
When  a  full  return  has  been  made,  the  court  must  hear 
the  parties,  or  such  of  them  as  may  attend  for  that  purpose, 
and  may  thereupon  give  judgment,  either  affirming,  or  an- 
nulling, or  modifying  the  proceedings  below.  En.  March 
11,  1872. 

Cal.  Rep.  Cit  56,  614. 

Prac.  Act,  sec.  463.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  25,  96. 

§  1076.  Copy  of  judgment  must  be  sent  to  the  Inferior 
tribunal.  A  copy  of  the  judgment,  signed  by  the  clerk, 
must  be  transmitted  to  the  inferior  tribunal,  board,  or 
officer  having  the  custody  of  the  record  or  proceeding  cer- 
tified up.     En.  March  11,  1872. 

Prac.  Act,  sec.  464.     En.  April  29,  1851. 


§§  1077-1085  WRIT    OF    MANDATE.  «HS 

§  1077.  Judgment-rolls.  A  copy  of  the  judgment, 
Bigned  by  the  clerk,  entered  upon  or  attached  to  the  writ 
and  return,  constitute  the  judgment-roll.  En.  March  11, 
1872. 

Cal.  Rep.  Cit  47,  605;  61,  55;  115,  85. 

Prac.  Act,  sec.  465.     En.  April  29,  185L 

CaL  Rep.  Cit  37,  450;   46,  9. 

CHAPTER  n. 

WRIT     OF     MANDATH. 

S  10S4.    Mandate   defined. 

S  1085.     When    and    by    what    court    Issued. 

5  1086.    Writ,    when   and    upon    what   to   Issue. 

5  1087.     Must    be    either    alternative    or    peremptory.     Substance. 

5  10«8.    If  the   application   be   without   notice,    the   alternative   writ  may 

Issue:    otherwise,    the    peremptory.    Notice    and    default. 
B  10S9.    The   adverse   party   may   answer  under   oath. 
(  1090.    If  an  essential  question  of  fact  la  ralse\i,    the  court  may  order 

a   Jury    trial. 
5  1091.    The   applicant   may   demur   to   the   answer   or   coimtervall   It    by 

proof. 
i  1092.    Motion    for   new    trial,    where   made. 
5  1003.     The    clerk    must    transmit    the    verdict    to    the    court    where    the 

motion    is    pejidlng,    after    which    tho    hearing   shall    be    had 

on   motion. 
5  1094.    If    no    answer    be    made,    or    If    the    answer    raise    no    material 

Issue   of   fact,    the   hearing   must  be   before   the   court. 
S  1095.    If    the    applicant    succeed,    he    may    have    damages,    costs,    and 

a   peremptory    mandate. 
§  1096.    Service   of  the   writ. 
5  1097.    Penalty    for   disobedience   to    tho   writ. 

§  1084.  Mandate  defined.  The  writ  of  mandamus  may 
be  denominated  a  writ  of  mandate.  En.  March  11,  1872. 
Am'd.    1873-4,    345. 

Prac.  Act,  sec.  466.     En.  April  29,  1851. 

§  1085.  When  and  by  what  court  issued.  It  may  be  is- 
sued by  any  court,  except  a  justice's  or  police  court,  to  any 
inferior  tribunal,  corporation,  board,  or  person,  to  compel 
the  performance  of  an  act  which  the  law,  specially  enjoins, 
as  a  duty  resulting  from  an  office,  trust,  or  station;  or  to 
compel  the  admission  of  a  party  to  the  use  and  enjoyment 
of  a  right  or  office  to  which  he  is  entitled,  and  from  which 
he  is  unlawfully  precluded  by  such  inferior  tribunal,  corpo- 
ration, board,  or  person.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  52,  9;   55,  329;   57,  76;   66,  595;   66,  633;   66, 
659;  73,  58;  82,  491;  91,  485;  93,  88;  105,  154;  116,  266; 


417  WRIT   OF   MANDATE.  §§  10S6,  1(»7 

117,  358;  121,  554;  124,  86;  126,  679;  135.  276;  135,  488; 
135,   625;    139,  232;    144,  7C9;    145,  46. 

Prac.  Act,  sec.  467.     En.  April  29,  1851. 

Cal.  Rep.  Cit  24,  82;   44,  174;   44,  175. 

Supreme  court  always  open:   Ante,  sec.  47. 

Superior  court  always  open:  Ante,  sec.  73.  Hearing,  etc., 
at  chambers:   Ante,  sec.  166. 

Court  commissioners,  power  to  hear  and  determine  ex 
parte  motions  for  writ:   Ante,  sec.  259. 

Returnable,  when  may  be  made:  Post,  see.  1108. 

§  1086.     Writ,  when  and  upon  what  to  isf^ue.     The  writ 
must  be  issued  in   all   cases  where  there   is   not   a   plain, 
speedy,   and   adequate   remedy,   in   the   ordinary   course   of 
law.    It  must  be  issued  upon  affidavit,  on  the  application  of 
the  party  beneficially  interested.     En.  March  11,  1872. 
Cal.  Rep.  Cit.  50,  510;  55,  330;   62,  617;  71,  45;  71,  312;  76, 
276;   87,  173;   87,  174;  87,  175;   108,  305;   118,  392;  126, 
679;    135,   14;    135,   625;    144,   115;    144,   508;    144,  527; 
145,  513. 
Prac.  Act,  sec.  468.     En.  April  29,  1851. 
Cal.  Rep.  Cit.  3,  174;  4,  388,  24,  82;  25,  29;  25,  30;  36,  287; 

44,   175. 
Issuance  by  supreme  court:  See  supreme  court  rule  28. 

S  1087.  Must  be  either  alternative  or  peremptory. 
Substance.  The  writ  may  be  either  alternative  or  per- 
emptory. The  alternative  writ  must  state  generally  the  al- 
legation against  the  party  to  whom  it  is  directed,  and  com- 
mand such  party,  immediately  after  the  receipt  of  the  writ, 
or  at  some  other  specified  time,  to  do  the  act  required  to  be 
performed,  or  to  show  cause  before  the  court  at  a  specified 
time  and  place,  why  he  has  not  done  so.  The  peremptory 
writ  must  be  in  a  similar  form,  except  that  the  words  re- 
quiring the  party  to  show  cause  why  he  has  not  done  as 
commanded  must  be  omitted,  and  a  return  day  inserted. 
En.  March  11,  1872. 

Prac.  Act,  sec.  469.     En.  April  29,  1851. 

Peremptory  writ,  without  alternative:    Sec.   1088. 

Alternative  writ:    Supreme  court  rule  26. 

Compelling  clerk  to  enter  names  on  great  register:  See 
Pol.  Code,  sees.  1108,  1110. 

Code  Civil   Proc— 27. 


S§  1088-1090  WHIT    OF    MANDATE.  4U 

5  1088.  If  the  application  be  without  notice,  the  alter- 
native writ  may  issue;  otherwise,  the  peremptory.  Notice 
and  default.  Whon  the  application  to  the  court  is  made 
without  notice  to  the  adverse  party,  and  the  writ  be  al- 
lowed, the  alternative  must  be  first  issued;  but  if  the  ap- 
plication be  upon  due  notice  and  the  writ  be  allowed,  the 
peremptory  may  be  issued  in  the  first  instance.  The  notice 
of  the  application,  when  given,  must  be  at  least  ten  days. 
The  writ  cannot  be  granted  by  default.  The  case  must  be 
heard  by  the  court,  whether  the  adverse  party  appear  or 
not.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  62,  506;  107,  390;  107,  391;  129,  400;  134,  509. 

Prac.  Act,  sec.  470.    En.  April  29,  1851. 

Proof  of  service,  on  public  body:   Supreme  court  rule  28. 

§  1089.  The  adverse  party  may  answer  under  oath. 
On  the  return  of  the  alternative,  or  the  day  on  which  the 
application  for  the  writ  is  noticed,  the  party  on  whom  the 
writ  or  notice  has  been  served  may  show  cause  by  answer 
under  oath,  made  in  the  same  manner  as  an  answer  to  a 
complaint  in  a  civil  action.     En.  March  11,  1872. 

Prac.  Act,  sec.  471.     En.  April  29,  1851. 

Answer:  Ante,  sec.  437. 

§  1090.  If  an  essential  question  of  fact  is  raised,  the 
court  may  order  a  jury  trial.  If  an  answer  be  made, 
which  raises  a  question  as  to  a  matter  of  fact  essential  to 
the  determination  of  the  motion,  and  affecting  the  substan- 
tial rights  of  the  parties,  and  upon  the  supposed  truth  of 
the  allegation  of  which  the  application  for  the  writ  is 
based,  the  court  may,  in  its  discretion,  order  the  question  to 
be  tried  before  a  jury,  and  postpone  the  argument  until 
such  trial  can  be  had,  and  the  verdict  certified  to  the  court. 
The  question  to  be  tried  must  be  distinctly  stated  in  the 
order  for  trial,  and  the  county  must  be  designated  in  which 
the  same  shall  be  had.  The  order  may  also  direct  the  jury 
to  assess  any  damages  which  the  applicant  may  have  sus- 
tained, in  case  they  find  for  him.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  81,  546. 

Prac.  Act,  sec.  472.    En.  April  29,  1851. 

Cal.  Rep.  Cit.  9.  20. 


419  WPaT    OF    MANDATE.  5§   1091   1095 

§  1091.  The  applicant  may  demur  to  the  answer  or 
countervail  it  by  proof.  On  the  trial  the  applicant  is  not 
precluded  by  the  answer  from  any  valid  objection  to  its 
sufficiency,  and  may  countervail  it  by  proof,  either  in  direct 
denial  or  by  way  of  avoidance.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  135,  276. 

Prac.  Act,  sec.  473.    En.  April  29,  1851. 

§  1092.  Motion  for  new  trial,  where  made.  The  motion 
for  a  new  trial  must  be  made  in  the  court  in  which  the  is- 
sue of  fact  is  tried.     En.  March  11,  1872. 

Prac.  Act,  sec.  474.     En.  April  29,  1851. 

§  1093.  The  clerk  must  transmit  the  verdict  to  the 
court  where  the  motion  is  pending,  after  which  the  hear- 
ing shall  be  had  on  motion.  If  no  notice  of  a  motion  for 
a  new  trial  be  given,  or,  if  given,  the  motion  be  denied,  the 
clerk,  within  five  days  after  rendition  of  the  verdict  or  de- 
nial of  the  motion,  must  transmit  to  the  court  in  which  the 
application  for  the  writ  Is  pending,  a  certified  copy  of  the 
verdict  attached  to  the  order  of  trial;  after  which  either 
party  may  bring  on  the  argument  of  the  application,  upon 
reasonable  notice  to  the  adverse  party.    En.  March  11,  1872. 

Prac.  Act,  sec.  475.     En.  April  29,  1851. 

§  1094.  If  no  answer  be  made,  or  if  the  answer  raise  no 
material  issue  of  fact,  the  hearing  must  be  before  ^he 
court.  If  no  answer  be  made,  the  case  must  be  heard  on 
the  papers  of  the  applicant.  If  the  answer  raises  only 
questions  of  law,  or  puts  in  issue  Immaterial  statements, 
not  affecting  the  substantial  rights  of  the  parties,  the  court 
must  proceed  to  hear  or  fix  a  day  for  hearing  the  argu- 
ment of  the  case.    En.  March  11,  1872.    Am'd.  1873-4,  345. 

Cal.  Rep.  Cit.  107,  390;   129,  400. 

Prac.  Act,  sec.  476.     En.  April  29,  1851. 

§  1095.  If  the  applicant  succeed,  he  may  have  dam- 
ages, costs,  and  a  peremptory  mandate.  If  judgment  be 
given  for  the  applicant,  he  may  recover  the  damages  which 
he  has  sustained,  as  found  by  the  jury,  or  as  may  be  deter- 
mined by  the  court  or  referee,  upon  a  reference  to  be 
ordered,   together  with  costs;    and  for  such  damages  and 


gS  1006,  1097  WRIT    OF    MANDATE.  *au 

costs  an  execution  may  Issue;   and  a  peremptory  mandate 
must  also  be  awarded  without  delay.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  123,  152;    123,  153. 

PrztC.  Act,  sec.  477.     En.  April  29,  1851. 

Cal.  Rep.  Cit.  12a,  153. 

Costs:  Ante,  sees.  1021  et  seq. 

§  1096.  Service  of  the  writ.  The  writ  must  be  served  la 
the  same  manner  as  a  summons  in  a  civil  action,  except 
when  otherwise  expressly  directed  by  order  of  the  court. 
Service  upon  a  majority  of  the  members  of  any  board  or 
body.  Is  service  upon  the  board  or  body,  whether  at  the 
time  of  the  service  the  board  or  body  was  In  session  or  not. 
En.  March  11,  1872. 

Prac.  Act,  sec.  478.     En.  April  29,  1851. 

Service  of  summons:  Ante,  sees.  410  et  seq. 

5  1097.  Penalty  for  disobedience  to  the  writ.  "^Tien  a 
peremptory  mandate  has  been  Issued  and  directed  to  any 
inferior  tribunal,  corporation,  board,  or  person,  If  it  appear 
to  the  court  that  any  member  of  such  tribunal,  corporation, 
or  board,  or  such  person  upon  whom  the  writ  has  been 
personally  served,  has,  without  just  excuse,  refused  or  neg- 
lected to  obey  the  same,  the  court  may,  upon  motion,  im- 
pose a  fine  not  exceeding-  one  thousand  dollars.  In  case  of 
persistence  in  a  refusal  of  obedience,  the  court  may  order 
the  party  to  be  imprisoned  until  the  writ  is  obeyed,  and 
may  make  any  orders  necessary  and  proper  for  the  com- 
plete enforcement  of  the  writ.  En.  March  11,  1872.  Am'd. 
1873-4,  345. 

Prac.  Act,  sec.  479.     En.  April  29,  1851. 

Contempt,  generally:  Post,  sees.  1209  et  seq. 


421  WRIT   OF   PROHIBITION.  Si)  UO^UW 

CHAPTER    III. 

WRIT    OF    PROHIBITION. 

5  1102.  Prohibition    deflne>3. 

§  110.3.  Where    and    when    Issued.  * 

§  1104.  Writ    may   be    alternative    or   peremptory.    Form    of. 

8  1105.  Certain    provisions    of    the    preceding    chapter    appUcabU. 

§  1102.  Prohibition  defined.  The  writ  of  prohibition  is 
the  counterpart  of  the  writ  of  mandate.  It  arrests  the 
proceedings  of  any  tribunal,  corporation,  board,  or  person, 
whether  exercising  functions  judicial  or  ministerial,  when 
such  proceedings  are  without  or  in  excess  of  the  jurisdic- 
tion of  such  tribunal,  corporation,  board,  or  person.  En. 
March  11,  1872.     Am'd.  1881,  20. 

Cal.  Rep.  Cit.  47,  82;  47,  585;  53,  292;  54,  88;  57,  553;  57, 
554;  58,  323;  59,  662;  66,  27;  68,  402;  69,  108;  84,  389; 
92,  251;  110,  58;  122,  216;  126,  221;  146,  310. 

Mandate:  Ante,  sees.  1084  et  seq. 

8  1103.  Where  and  when  issued.  It  may  be  Issued  by 
any  court  except  police  or  justices'  courts,  to  an  Inferior 
tribunal  or  to  a  corporation,  board,  or  person,  In  all  cases 
where  there  Is  not  a  plain,  speedy,  and  adequate  remedy  In 
the  ordinary  course  of  law.  It  Is  issued  upon  affidavit,  on 
the  application  of  the  person  beneficially  Interested.  En. 
March  11,  1872. 

Cal.  Rep.  CIt.  58,  324;  59,  663;  66,  27;  69,  108;  84,  889;  85, 
50;  90,  103;  92,  251;  108,  305;  110,  58;  122,  216;  133, 
365;   137,  109. 

Seal  necessary  to  a  writ:  Ante,  sec.  153. 

§  1104.     Writ  may  be  alternative  or  peremptory.     Form 

of.  The  writ  must  be  either  alternative  or  peremptory. 
The  alternative  writ  must  state  generally  the  allegation 
against  the  party  to  whom  it  Is  directed,  and  command  such 
I>arty  to  desist  or  refrain  from  further  proceedings  In  the 
action  or  matter  specified  therein,  until  the  further  order  of 
the  court  from  which  it  is  issued,  and  to  show  cause  before 
such  court,  at  a  specified  time  and  place,  why  such  party 
should  not  be  absolutely  restrained  from  any  further  pro- 
ceedings in  such  action  or  matter.  The  peremptory  writ 
must  be  In  a  similar  form,  except  that  the  words  requiring 


I§  1105-1110  RULKS    OF    PUACTICE.  422 

the  party  to  show  cause  why  he  should  not  be  absolutely 
restrained,  etc.,  must  be  omitted,  and  a  return  day  inserted. 
En.  March  11,  1872. 
Compare  sec.  1087. 

§  1105.  Certain  provisions  of  the  preceding  chapter  ap- 
plicable. The  provisions* of  the  preceding  chapter,  except 
of  the  first  four  sections  thereof,  apply  to  this  proceeding. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.  88,  267. 

CHAPTER  rV. 

WRITS   OF   REVIEW,   MANDATE,    AND  PROHIBITION   MAT   ISSUTS 
AND    BE    HEARD    AT-    CHAMBERS. 

5  1108.    Writs   of   review,    mandate,    axid    prohibition   may    issue   and    be 
heard    at    chambers. 

§  1108.  Writs  of  review,  mandate,  and  prohibition  may 
issue  and  be  hard  at  chambers.  Writs  of  review,  man- 
date, and  prohibition  issued  by  the  supreme  court,  or  by  a 
superior  court,  may,  in  the  discretion  of  the  court  issuing 
the  writ,  be  made  returnable  and  a  hearing  thereon  be  had 
at  any  time.  En.  March  11,  1872.  Am'd.  1873-4,  346;  1880, 
74. 

Cal.  Rep.  Cit.  45,  243. 

Powers  of  judges  at  chambers:  Ante,  sees.  165,  166. 

CHAPTER  V. 

RULES  OF  PRACTICE  AND  APPEALS. 

f  1109.    Certain    provisions   of   part   two   applicable. 
§  1110.     Same. 

§  1109.  Certain  provisions  of  part  two  applicable.  Ex- 
cept as  otherwise  provided  in  this  title,  the  provisions  of 
part  two  of  this  code,  are  applicable  to,  and  constitute  the 
rules  of  practice  in  the  proceedings  mentioned  in  this  title. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.  117,  6;   141,  97. 

See  ante,  sees.  307  et  seq. 

§  1110.  Same.  The  provisions  of  part  two,  of  this  code, 
relative  to  new  trials  and  appeals,  except  in  so  far  as  they 
are  inconsistent  with  the  provisions  of  this  title,  apply  to 
the  proceedings  mentioned  in  this  title.  En.  March  11,  1872. 

See  ante,  sees.  656  et  seq.;  and  ante,  sees.  936  et  seq. 


«23  CONTISSTING    CERTAIN    ELECTIONS.  S  m^ 


TITLE    II. 

OF    CONTESTING    ELECTIONS. 

5  1111.    Who    may    contest,    and    grounds    of   contest. 

§  1112.  Irregularity    and    Improper    conduct    of    judges,    when    to    annal 

elections. 

§  1113.  When    not    to. 

§  1114.  Illegal   votes,   when  not  to  vitiate  election. 

§  111.5.  Proceedings   on   contest. 

§  1115.  Statement   of   cause   of  contest   in   Illegal   voting. 

6  1U7.  Statement   of   cause   of   contest;    want   of   form    not    to   vitlat*. 
§  1118.  Superior   Judge    to   hold   special   session   for  trial   of  contest, 

§  1119.  Clerk   to   Issue   citation    to    respondent. 

5  1120.  Witnesses;    attendance    of,    how    enforced. 

§  1121.  Power    of    court.    Adjournment    of    court, 

§  1122.  Rules   to    govern    court    in    trial   of   contest. 

I  1123.  Court    may    declare    who    was    elected, 

§  1124,  Fees    of   officers   and    witnesses.    (Repealed.) 

§  1125.  Costs. 

§  1126.  Appeal, 

§  1127.  When   election   void  and  ofHce  vacant. 

Gen.  Cit.  to  Title.— Cal.  Rep.  Cit.  125,  528. 

§  1111.  Who  may  contest,  and  grounds  of  contest.  Any 
elector  of  a  county,  city  and  county,  city,  or  of  any  political 
subdivision  of  either,  may  contest  the  right  of  any  person 
declared  elected  to  an  office  to  be  exercised  therein,  for 
any  of  the  following  causes: 

1.  For  malconduct  on  the  part  of  the  board  of  judges,  or 
any  member  thereof. 

2.  "When  the  person  whose  right  to  the  office  is  contested 
was  not,  at  the  time  of  the  election,  eligible  to  such  office. 

3.  Wben  the  person  whose  right  is  contested  has  given 
to  any  elector  or  inspector,  judge,  or  clerk  of  the  Election, 
any  bribe  or  reward,  or  has  offered  any  such  bribe  or  re- 
ward for  the  purpose  of  procuring  his  election,  or  has  com- 
mitted any  other  offense  against  the  elective  franchise,  de- 
fined in  title  four,  part  one,  of  the  Penal  Code. 

4.  On  account  of  illegal  votes.  En.  March  11,  1872.  Am'd. 
1875-6,  100. 

Cal.  Rep,  Cit  46,  401;  46,  403;  64,  95;  83,  71;  83,  74-  87, 
124;  87,  125;  100,  201;  114,  96;  118,  400;  129,  327-  134, 
152;  136,  266;  138,  152;  139,  5;  141,  413;  141,  415;  141, 
559;  142,  498;  142,  592;  143,  470;  143,  472;  143,  546; 
143,  547;  14G,  329.  Subd.  1—65,  59;  83,  73;  111,  420. 
Subd.  2—118,  395;  145,  692.  Subd.  4—104,  661;  127,  31: 
128,  284. 


§§   1112-1115  CONTESTING    CKRTAIN    ELECTIONS.  424 

Malconduct  of  judges:   Post,  sees.  1112,  1113. 

Legislature,  contesting  election  of  members  of:  Pol. 
Code,  sec.  273;  of  governor,  etc.:   Id.,  sec.  288. 

Office,  usurpation  of,  etc.:  Ante,  sees.  802  et  seq. 

Offense  against  elective  franchise:  Pen.  Code,  sees.  41 
et  seq. 

§  1112.  Irregularity  and  improper  conduct  of  judges, 
when  to  annui  elections.  No  irregularity  or  improper 
conduct  in  the  proceedings  of  the  judges,  or  of  any  of  them, 
is  such  malconduct  as  avoids  an  election,  unless  the  irregu- 
larity or  improper  conduct  is  such  as  to  procure  the  person 
whose  right  to  the  office  is  contested  to  be  declared  elected, 
when  he  had  not  received  the  highest  number  of  legal  votes. 
En.  March  11.  1872. 

Cal.  Rep.  Cit  83,  78;  108,  111;  124,  13;  136,  402;  143,  342; 
143.  386;  143,  546;  143,  547;   143,  549. 

§  1113.  When  not  to.  When  any  election  held  for  an 
office  exercised  in  and  for  a  county  is  contested  on  account 
of  any  malconduct  on  the  part  of  the  board  of  judges  of  any 
township  election,  or  any  member  thereof,  the  election 
cannot  be  annulled  and  set  aside  upon  any  proof  thereof, 
unless  the  rejection  of  the  vote  of  such  township  or  town- 
ships would  change  the  result  as  to  such  office  in  the  re- 
maining vote  of  the  county.    En.  March  11,  1872, 

§  1114.     Illegal     votes,    when     not    to    vitiate    election. 

Nothing  in  the  fourth  ground  of  contest  specified  in  sec- 
tion eleven  hundred  and  eleven,  is  to  be  so  construed  as  to 
authorize  an  election  to  be  set  aside  on  account  of  illegal 
votes,  unless  it  appear  that  a  number  of  illegal  votes  has 
been  given  to  the  person  whose  right  to  the  office  is  con- 
tested, which,  if  taken  from  him,  would  reduce  the  number 
of  his  legal  votes  below  the  number  of  votes  given  to  some 
other  person  for  the  same  office,  after  deducting  therefrom 
the  illegal  votes  which  may  be  shown  to  have  been  given 
to  such  other  person.     En.   March  11,   1872. 

Cal.  Rep.  Cit.  65,  286;  83,  73;   128,  284;   143,  547. 

§  1115.  Proceedings  on  contest.  V/hen  an  elector  con- 
tests the  right  of  any  person  declared  elected  to  such  office, 
he  must,  within  forty  days  after  the  return  day  of  the  elec- 


425  CONTESTING    CERTAIN     ELECTIONS.  §  ij   llliMlIS 

tion,  file  with  the  county  clerk  a  written  statement,  setting 
forth   specifically: 

1.  The  name  of  the  party  contesting  such  election,  and 
that  he  is  an  elector  of  the  district,  county,  or  township,  as 
the  case  may  be,  in  which  such  election  was  held; 

2.  The  name  of  the  person  whose  right  to  the  office  is 
contested; 

3.  The  office; 

4.  The  particular  grounds  of  such  contest; 

— Which  statement  must  be  verified  by  the  affidavit  of 
the  contesting  party,  that  the  matters  and  things  therein 
contained  are  true.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  46,  403;  58,  207;  58,  208;  65,  59;  111,  130; 
121,  479;    141,  274;    142,  504;    143,  485;    146,  329. 

Statement  of  contestant:  Post,  sees.  1116,  1117. 

§  1116.  Statement  of  cause  of  contest  in  illegal  voting. 
When  the  reception  of  illegal  votes  is  alleged  as  a  cause  of 
contest.  It  is  sufficient  to  state  generally  that  In  one  or 
more  specified  voting  precincts  illegal  votes  were  given  to 
the  person  whose  election  is  contested,  which,  if  taken  from 
him,  will  reduce  the  number  of  his  legal  votes  below  the 
number  of  legal  votes  given  to  some  other  person  for  the 
same  office;  but  no  testimony  can  be  received  of  any  illegal 
votes,  unless  the  party  contesting  such  election  deliver  to 
the  opposite  party,  at  least  three  days  before  such  trial,  a 
written  list  of  the  number  of  illegal  votes,  and  by  whom 
given,  which  he  intends  to  prove  on  such  trial;  and  no 
testimony  can  be  received  of  any  illegal  votes  except  such 
as  are  specified  in  such  list.  Bn.  March  11,  1872.  Am'd. 
1880,  74. 

Cal.  Rep.  Cit  51,  516;  58,  211;  105,  182;  121,  534;  136,  4; 
136,  277;    142,  504. 

§  1117.  Statement  of  cause  of  contest;  want  of  form  not 
to  vitiate.  No  statement  of  the  grounds  of  contest  will  be 
rejected,  nor  the  proceedings  dismissed  by  any  court  for 
want  of  form,  if  the  grounds  of  contest  are  alleged  with 
such  certainty  as  will  advise  the  defendant  of  the  particular 
proceeding  or  cause  for  which  such  election  is  contested. 
En.  March  11.  1872. 

CaL  Rep.  Cit.  141,  275;  143,  21;  143,  485;  145,  318. 

§  1118.  Superior  judge  to  hold  special  session  for  trial 
of  contest.    Upon   the   statement   being   filed,   the   county 


§§  1119- U2  CONTESTING    CERTAIN    ELECTIONS.  t» 

clerk  must  inform  the  superior  court  of  the  county  thereof, 
which  shall  thereupon  order  a  special  session  of  such  cou.-t 
to  be  held  at  the  courtroom,  on  some  day  to  be  named  by 
it,  not  less  than  ten  nor  more  than  twenty  days  from  the 
date  of  such  order,  to  hear  and  determine  such  contesteJ 
election.     En.  March  11,  1872.     Am'd.  1880,  75. 

Cal.  Rep.  Cit.  119,  614;   119,  616;  143,  21. 

§  1119.  Clerk  to  issue  citation  to  respondent..  The 
clerk  shall  thereupon  issue  a  citation  for  the  person,  whose 
right  to  the  office  is  contested,  to  appear  at  the  time  and 
place  specified  in  the  order,  which  citation  must  bo  deliv- 
ered to  the  sheriff,  and  served  either  upon  the  party  in  per- 
son, or,  if  he  cannot  be  found,  by  leaving  a  copy  thereof 
at  the  house  where  he  last  resided,  at  least  five  days  before 
the  time  so  specified.    En.  March.  11,  1872.    AmU  1880,  75. 

§  1120.  Witnesses;  attendance  of,  how  enforced.  The 
clerk  must  issue  subpoenas  for  witnesses  at  the  request  of 
either  party,  which  must  be  served  as  other  subpoenas;  and 
the  superior  court  shall  have  full  power  to  issue  attach- 
ments to  compel  the  attendance  of  witnesses  who  have  been 
subpoenaed  to  attend.     En.  March  11,  1872.  Am'd.  1880,  75. 

Subpoenas,  issuance,  service,  etc:  Post,  sees.  1985-1987; 
also  see  post,  sees.  1988-1990;  disobedience,  penalty,  etc.: 
Post,  sees.  1991-1992. 

Compelling  attendance  of  witnesses:  Post,  sees.  1993 
et  seq. 

§  1121.  Power  of  court.  Adjournment  of  court.  The 
court  must  meet  at  the  time  and  place  designated,  to  de- 
termine such  contested  election,  and  shall  have  all  the 
powers  necessary  to  the  determination  thereof.  It  may 
adjourn  from  day  to  day  until  such  trial  is  ended,  and  may 
also  continue  the  trial,  before  its  commencement,  for  any 
time  not  exceeding  twenty  days,  for  good  cause  shown  by 
either  party  upon  aflBdavit,  at  the  costs  of  the  party  apply- 
ing for  such  continuance.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  119,  614;  119,  617. 

§  1122.     Rules  to  govern  court  in  trial  of  contest.     The 

court  must  be  governed.,  in  the  trial  and  determination  of 
such  contested  election,  by  the  rules  of  law  and  evidence 


427  CONTESTING    CERTAIN    ELECTIONS.  §§  lUS-ll'JB 

governing  the  determination  of  questions  of  law  and  fact, 
so  far  as  the  same  may  be  applicable;  and  may  dismiss  the 
proceedings  if  the  statement  of  the  cause,  or  causes  of  the 
contest  is  [in] sufficient,  or  for  want  of  prosecution.  After 
hearing  the  proofs  and  allegations  of  the  parties,  the  court 
must  pronounce  judgment  in  the  premises,  either  confirm- 
ing or  annulling  and  setting  aside  such  election.  En.  March 
11,    1872. 

Cal.  Eep.  Cit.     65,  286;    121,  479;    141,  563;    142,  373. 

§  1123.     Court  may  declare  who  was  elected.     If  in  any 

such  case  it  appears  that  another  person  than  the  one  re- 
turned has  the  highest  number  of  legal  votes,  the  court 
must  declare  such  person  elected.     En.  March  11,  1872. 

Cal.  Eep.  Cit.     128,  284;    140,  651;    141,  416;   141,  561;    141, 
563. 

§  1124.  Fees  of  officers  and  witnesses.  (Eepealed.)  En. 
March  11,  1872.     Eep.  1880,  76. 

§  1125.  Costs.  If  the  proceedings  are  dismissed  for  in- 
sufficiency, or  want  of  prosecution,  or  the  election  is  by  the 
court  confirmed,  judgment  must  be  rendered  against  the 
party  contesting  such  election,  for  costs,  in  favor  of  the 
party  whose  election  was  contested;  but  if  the  election  is 
annulled  and  set  aside,  judgment  for  costs  must  be  ren- 
dered against  the  party  whose  election  was  contested,  in 
favor  of  the  party  contesting  the  same.  Primarily,  each 
party  is  liable  for  the  costs  created  by  himself,  to  the 
officers  and  witnesses  entitled  thereto,  which  may  be  col- 
lected in  the  same  manner  as  similar  costs  are  collected  in 
other  cases.     En.  March  11,  1872.     Am'd.  1880,  75. 

Cal.  Eep.  Cit.     65,  286;  127,  33;  143,  549. 

Costs,  in  special  proceedings:  Ante,  sees.  1022,  subd.  4, 
1024;  generally:  Ante,  sees.  1021  et  seq. 

§  1126.  Appeal.  Either  party,  aggrieved  by  the  judg- 
ment of  the  court,  may  appeal  therefrom  to  the  supreme 
court,  as  in  other  cases  of  appeal  thereto  from  the  superior 
eourt.     En.  March  11,  1872.     Am'd.  1880,  75. 

Cal.  Eep.  Cit.     79,  483;    114,  98;   125,  528;    146,  325. 

Appeals  to  supreme  court:  Ante,  sec.  963;  appeals,  gen- 
erally: Ante,  sees.  936  et  seq. 


§§  1127,  1132  CONFESSION    OF    ."nUDGMENT.  43 

§  1127.  When  election  void  and  office  vacant.  When- 
ever an  election  is  annulled  or  set  aside  by  the  judgment  of 
the  superior  court,  and  no  appeal  has  been  taken  within  ten 
days  thereafter,  the  commission,  if  any  has  issued,  is  void, 
and  the  office  vacant.     En.  March  11,  1872.     Am'd.  1S80,  76. 

Cal.  Rep.  Cit.  Ill,  420;  114,  96;  129,  327;  134,  152.  Subd. 
1—111,  42.0. 


TITLE    III. 

OP   SUMMARY   PROCEEDINGS. 

Chapter  I.    Confession     of     Judgment     V/ithout     Action, 
§§   1132-1135. 
U,    Submitting   of  a  Controversy  Without  Action, 

§§  1138-1140. 
ni.     Discharge  of  Persons  Imprisoned  on  Civil  Pro- 
cess, §§  1143-1154. 
IV.     Summary    Proceedings    for  Obtaining    Posses- 
sion of    Real    Property    in    Certain    Cases, 
§  §  1159-1179. 


CHAPTER  L 

CONFESSION    OF    JUDGMENT    WITHOUT    ACTION. 

{  1132.    Judgment    may    be    confessed    for    debt    due    or    contingent    lia- 
bility. 
(  1133.     Statement    In    writing    and    form    thereof. 
§  1134.    Piling    statement    and    entering    judgment. 
5  1136.     Kow,    In   justices'    courts. 

§  1132.  Judgment  may  "be  confessed  for  debt  due  or  con- 
tingent liability.  A  judgment  by  confession  may  be  en- 
tered without  action,  either  for  money  due  or  to  become 
due,  or  to  secure  any  person  against  contingent  liability  on 
behalf  of  the  defendant,  or  both,  in  the  manner  prescribed 
by  this  chapter.  Such  judgment  may  be  entered  in  any 
court  having  jurisdiction  for  like  amounts.  En.  March  11, 
1872. 

Cal.  Eep.  Cit.     134,  672. 

Prac.  Act,  see.  374.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     18,  581. 

Judgment  by  confession,  in  justice's  court:  Sees.  112, 
Bubd.  6,  114,  889,  ante,  1135,  post. 


429  CONFESSION    OP    JtJDGMBNT.  §§  113a-U35 

§  1133.     Statement     in     writing     and    form     thereof.     A 

statement  in  writing  must  be  made,  signed  by  the  defend- 
ant, and  verified  by  his  oath,  to  the  follov/ing  effect: 

1.  It  must  authorize  the  entry  of  judgment  for  a  specified 
sum; 

2.  If  it  be  for  money  due,  or  to  become  due.  It  must 
state  concisely  the  facts  out  of  which  it  arose,  and  show 
that  the  sum  confessed  therefor  is  Justly  due,  or  to  become 
due; 

3.  If  it  be  for  the  purpose  of  securing  the  plaintiff 
against  a  contingent  liability,  it  must  state  concisely  the 
facts  constituting  the  liability,  and  show  that  the  sum 
confessed  therefor  does  not  exceed  the  same.  En.  Marcii 
11,   1872. 

Prac.  Act,  sec.  375.    En.  Ap.il  29,  1851. 

CaL  Rep.  Cit.    18,   581. 

§  1134.  Filing  statement  and  entering  judgment.  The 
statement  must  be  filed  with  the  clerk  of  the  court  in  which 
the  judgment  is  to  be  entered,  who  must  indorse  upon  it, 
and  enter  in  the  judgment  book,  a  judgment  of  such  court 
for  the  amount  confessed,  with  ten  dollars  costs.  The 
statement  and  affidavit,  with  the  judgment  indorsed,  there- 
upon becomes  the  judgment-roll.     En.  March  11,  1872. 

Prac.  Act,  sec.  376.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     18,  581. 

§  1135.  How,  in  justice's  conrts.  In  a  justice's  court, 
where  the  court  has  authority  to  enter  the  judgment,  the 
statement  may  be  filed  with  the  justice,  who  may  there- 
upon enter  in  his  docket  a  judgment  of  his  court  for  the 
amount  confessed,  with  three  dollars  costs.  If  a  transcript 
of  such  judgment  be  filed  with  the  county  clerk,  a  copy  of 
the  statement  must  be  filed  with  it.     En.  March  11,  1872. 

Justice's  court:  Ante,  sees.  112,  subd.  6,  114,  889. 


§§  imilBl  DISCHARGE.  *  432 

cernlng  his  estate  and  property  and  effects,  and  the  dis- 
posal thereof,  and  his  ability  to  pay  the  judgment  for 
which  he  is  committed;  and  such  Judge  may  also  hear 
any  other  legal  and  pertinent  evidence  that  may  be  pro- 
duced by  the  debtor  or  the  creditor.     En,  March  11,  1872. 

§  1147.  Interrogatories  may  be  in  writing.  The  plain- 
tiff In  the  action  may,  upon  such  examination,  propose  to 
the  prisoner  any  interrogatories  pertinent  to  the  inquiry, 
and  they  must,  If  required  by  him,  be  proposed  and  an- 
swered In  writing,  and  the  answer  must  be  signed  and 
Bworn  to  by  the  prisoner.    En.  March  11,   1872. 

S  1148.  Oath  to  be  administered.  If,  upon  the  examina- 
tion, the  judge  is  satisfied  that  the  prisoner  Is  entitled  to 
his  discharge,   he   must   administer   to   him   the   following 

oath,  to  wit:  "I, ,  do  solemnly  swear  that  I  have 

not  any  estate,  real  or  personal,  to  the  amount  of  fifty 
dollars,  except  such  as  is  by  law  exempted  from  being 
taken  in  execution;  and  that  I  have  not  any  other  estate 
now  conveyed  or  concealed,  or  in  any  way  disposed  of, 
with  design  to  secure  the  same  to  my  use,  or  to  hinder, 
delay,  or  defraud  my  creditors,  so  help  me  God."  En. 
March    11,    1872. 

Cal.   Rep.   Cit.     96,  234. 

§  1149.  Order  of  discharge.  After  administering  the 
oath,  the  judge  must  issue  an  order  that  the  prisoner  be 
discharged  from  custody,  and  the  officer,  upon  the  service 
of  such  order,  must  discharge  the  prisoner  forthwith,  if  he 
be  imprisoned  for  no  other  cause.    En.  March  11,  1872. 

§  1150.  If  not  discharged,  prisoner  may  again  applVi 
when.  If  such  judge  does  not  discharge  the  prisoner,  he 
may  apply  for  his  discharge  at  the  end  of  every  succeeding 
ten  days,  in  the  same  manner  as  above  provided,  and  the 
same  proceedings  must  thereupon  be  had.  En.  March  11, 
1872. 

§  1151.  Discharge  final.  The  prisoner,  after  being  so 
discharged,  Is  forever  exempted  from  arrest  or  imprison- 
ment for  the  same  debt,  unless  he  be  convicted  of  having 
willfully   sworn   falsely   upon   his   examination   before  the 


483  DISCHARGE.  55  1152-1164 

Judge,  or  In  taking  the  oath  before  prescribed.    En.  Marcb 
11,  1872. 

Cal.    Rep.    CIt.     96,    234. 

8  1152.  Judgment  remains  in  force.  The  judgment 
against  any  prisoner  who  is  discharged  remains  In  full 
force  against  any  estate  which  may  then  or  at  any  time 
afterward  belong  to  him,  and  the  plaintiff  may  take  out  <i 
new  execution  against  the  goods  and  estate  of  the  pris- 
oner, in  like  manner  as  if  he  had  never  been  committed. 
En.  March  11,  1872. 

§  1153.  Plaintiff  may  order  discharge  of  the  prisoner, 
who  shall  not  thereafter  be  liable  to  imprisonment  for  the 
same  cause  of  action.  The  plaintiff  in  the  action  may  at 
any  time  order  the  prisoner  to  be  discharged,  and  he  l3 
not  thereafter  liable  to  Imprisonment  for  the  same  cause 
of  action.     En.  March  11,  1872. 


§  1154.  Plaintiff  to  advance  funds  for  support  of 
prisoner.  WTienever  a  person  Is  committed  to  jail  on 
an  execution  issued  on  a  judgment  recovered  In  a  civil 
action,  the  creditor,  his  agent  or  attorne5%  must  advance 
to  the  jailer,  on  such  commitment,  sufficient  money  for 
the  support  of  the  prisoner  for  one  week,  and  must  make 
the  like  advance  for  every  successive  week  of  his  Im- 
prisonment; and  In  case  of  failure  to  do  so,  the  jailer 
must  forthwith  discharge  such  prisoner  from  custody,  and 
Buch  discharge  has  the  same  effect  as  if  made  by  order  of 
the  creditor.    En.  March  11,  1872. 

Cal.    Rep.    CIt.    50,    307. 

Code  Civil  Proo.— 28. 


II  115a,  IIM  SUMMABY     PROCBiBDINaS. 


CHAPTER    rV. 

BUMMART     PROCEEDINGS      FOR     OBTAINING     POSSESSION     OF 
REAL    PROPERTY    IN    CERTAIN    CASli^a. 

8  1169.  Forcible   entry   defined. 

8  1160.  Forcible    detainer   defined. 

§  1161.  Unlawful    detainer    deflnevl. 

8  1162.  Service   of  notice. 

I  1163.  Jurisdiction    of    Bupertor   court*. 

§  1164.  Parties   defendant. 

§  1166.  Parties    generally. 

g  1166.  Complaint.    When    summon*   must  be   Issued. 

§  1167.  Summons,    form  and  service  of. 

§  1168.  Arrest. 

§  1169.  Judgment  by   default. 

8  1170.  Defendant    may   appear,    ©to. 

8  1171.  Trial    by    Jury. 

{  1172.  Showing   required   of  plaintiff  In   forcible   entry   or  detainer.    Of 

defendant. 

§  1178.  Complaint   must  be   amended   la  certain   cases. 

§  1174.  Verdict   and   judgment. 

",  1176.  Verification   of   complaint  and  answer. 

8  1176.  Effect   of   an   appeal   upon   the   Judgment. 

I  1177.  Rules   of   practice. 

6  1178.  Appeals,    how   taken,   eta 

[  1179.  Relief   against   forfeiture   of   lease. 

§  11B9.  iForcible  entry  defined.  Every  person  ia  guilty 
of  a  forcible  entry  who  either: 

1.  By  breaking  open  doors,  windows,  or  other  parts  of  a 
house,  or  by  any  kind  of  violence  or  circumstance  of  ter- 
ror, enters  upon  or  into  any  real  property;   or, 

2.  Who,  after  entering  peaceably  upon  real  property, 
turns  out  by  force,  threats  or  menacing  conduct,  the  party 
in  possession.     En,  March  11,  1872. 

Cal.  Rep.  Cit,  49,  273;   53,  674;   60,  574;   62,  68;   69,  563; 
71,  133;  76,  133;  83,  100;  107,  301;  135,  661;  138,  420. 

Proof  required:  Post,  sec.  1172. 

Parties  defendant:  Post,  sees.  1164,  1165. 

§  1160.  Forcible  detainer  defined.  Every  person  is 
guilty  of  a  forcible   detainer  who.  either: 

1.  By  force,  or  by  menaces  and  threats  of  violence,  un- 
lawfully holds  and  keeps  the  possession  of  any  real  prop- 
erty, whether  the  same  was  acquired  peaceably  or  other- 
wise; or, 

2.  Who,  in  the  mght-time,  or  during  the  absence  of  the 


43J  SUMMARY    f>UOCEi3DiNGS.  §  H^ 

oecvpant  of  auy  lands,  unlawfully  enters  upon  real  prop- 
erty, and  who,  after  demand  made  for  the  surrender  there- 
of, for  the  period  of  five  days  refuses  to  surrender  the  same 
to  such  former  occupant. 

The  occupant  of  real  property,  within  the  meaning  of 
this  subdivision,  is  one  who  within  five  days  preceding 
such  unlawful  entry,  was  in  the  peaceable  and  undisturbed 
possession  of  such  lands.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  50,  317;  51,  543;  53,  674;  60,  574;  76,  627; 
77,  256;  83,  97;  107,  301;  137,  605;  138,  420.  Subd.  2 
—51,  533;    76,  133;    83,  100;    114,  346;    114,  347. 


§  1161.  Unlawful  detainer  defined.  A  tenant  of  real 
property,  for  a  term  of  less  than  life.  Is  guilty  of  unlawful 
detainer: 

1.  When  he  continues  in  possession,  in  person  or  by  sub- 
tenant, of  the  property,  or  any  part  thereof,  after  the  ex- 
piration of  the  terra  for  which  it  is  let  to  him,  without  the 
permission  of  his  landlord,  or  the  successor  in  estate  of  his 
landlord,  if  any  there  be;  but  In  case  of  a  tenancy  at  will 
it  must  first  be  terminated  by  notice,  as  prescribed  in  the 
Civil  Code. 

2.  "When  he  continues  in  possession,  in  person  or  by  sub- 
tenant, without  the  permission  of  his  landlord,  or  the  suc- 
cessor in  estate  of  his  landlord,  if  any  there  be,  after 
default  in  the  payment  of  rent,  pursuant  to  the  lease  or 
agreement  under  which  the  property  is  held,  and  three 
days'  notice,  in  writing,  requiring  its  payment  stating  the 
amount  which  is  due,  or  possession  of  the  property,  shall 
have  been  served  upon  him  and  if  there  is  a  subtenant  in 
actual  occupation  of  the  premises,  also  upon  such  subten- 
ant. 

Such  notice  may  be  served  at  any  time  within  one  year 
after  the  rent  becomes  due.  In  all  cases  of  tenancy  upon 
agricultural  lands,  where  the  tenant  has  held  over  and  re- 
tained possession  for  more  than  sixty  days  after  the  ex- 
piration of  the  term  without  any  demand  of  possession  or 
notice  to  quit  by  the  landlord,  or  the  successor  in  estate 
of  his  landlord,  if  any  there  be,  he  shall  be  deemed  to  be 
holding  by  permission  of  the  landlord,  or  the  successor 
in  estate  of  his  landlord,  if  any  there  be,  and  shall  be  en- 


8  liei  SUMMARY    PROCEEDINGS.  430 

titled  to  hold  under  the  terms  of  the  lease  for  another  full 
year,  and  shall  not  be  guilty  of  an  unlawful  detainer  dur- 
ing said  year,  and  such  holding  over  for  the  period  afore- 
said shall  be  taken  and  construed  as  a  consent  on  the 
part  of  a  tenant  to  hold  for  another  year. 

3.  When  he  continues  in  possession,  in  person  or  by  sub- 
tenant, after  a  neglect  or  failure  to  perform  other  condi- 
tions or  covenants  of  the  lease  or  agreement  under  which 
the  property  is  held,  including  any  covenant  not  to  assign 
or  sublet,  than  the  one  for  the  payment  of  rent,  and  three 
days'  notice,  in  writing,  requiring  the  performance  of  such 
conditions  or  covenants,  or  the  possession  of  the  property, 
shall  have  been  served  upon  him,  and  if  there  is  a'  subtenant 
in  actual  occupation  of  the  premises,  also,  upon  such  sub- 
tenant. Within  three  days  after  the  service  of  the  notice, 
the  tenant,  or  any  subtenant  in  actual  occupation  of  the 
premises,  or  any  mortgagee  of  the  term,  or  other  person 
interested  in  its  continuance,  may  perform  the  conditions 
or  covenants  of  the  lease  or  pay  the  stipulated  rent,  as 
the  case  may  be,  and  thereby  save  the  lease  from  forfei- 
ture; provided,  if  the  conditions  and  covenants  of  the 
lease,  violated  by  the  lessee,  cannot  afterward  be  per- 
formed, then  no  notice,  as  last  prescribed  herein,  need  be 
given  to  said  lessee  or  his  subtenant,  demanding  the  per- 
formance of  the  violated  conditions  or  covenant  of  the 
lease. 

A  tenant  may  take  proceedings,  similar  to  those  pre- 
scribed in  this  chapter,  to  obtain  possession  of  the  prem- 
ises let  to  a  subtenant,  in  case  of  his  unlawful  detention 
of  the  premises  underlet  to  him. 

4.  Any  tenant  or  subtenant  assigning  or  subletting  or 
committing  waste  upon  the  demised  premises,  contrary 
to  the  conditions  or  covenants  of  his  lease,  thereby  term- 
inates the  lease,  and  the  landlord,  or  his  successor  in  es- 
tate, shall  upon  service  of  three  days'  notice  to  quit  upon 
the  person  or  persons  in  possession,  be  entitled  to  resti- 
tution of  possession  of  such  demised  premises  under  the 
provisions  of  this  chapter.  En.  March  11,  1872.  Am'd. 
1873-4,  346;  1875-6,  101;  1877-8,  104;  1877-8,  106.  Rep. 
1905,  29.    En.  1905,  29. 

Cal.   Rep.   Cit.     ^2,   472;    56,   130;    63,   49;    63,   52;    63,   69; 
66,  446;    66,  447;    68,   506;    71,   536;    79,   442;    84,   422; 


437  SUMMARY    rROCEEDINGS.  §§  1162-U&1 

§  1162.  Service  of  notice.  The  notices  required  by  the 
preceding  section  may  be  served  either: 

91,  597,  98.  425;  132,  135;  137,  605;  138,  78;  138,  284. 
Subd.  1—79,  442;  106,  221.  Subd.  2—60,  374;  107,  112; 
141,  556;  145,  557.     Subd.  3—63,  69;  139,  659;  139.  660. 

1.  By  delivering  a  copy  to  the  tenant  personally;   or, 

2.  If  he  be  absent  from  his  place  of  residence,  and  from 
his  usual  place  of  business,  by  leaving  a  copy  with  some 
person  of  suitable  age  and  discretion  at  either  plaxie,  and 
sending  a  copy  through  the  mail  addressed  to  the  tenant  at 
his  place  of  residence;  or, 

3.  If  such  place  of  residence  and  business  cannot  be 
ascertained,  or  a  person  of  suitable  age  or  discretion  there 
cannot  be  found,  then  by  affixing  a  copy  in  a  conspicuous 
place  on  the  property,  and  also  delivering  a  copy  to  a  per- 
son there  residing,  if  such  person  can  be  found;  and  also 
sending  a  copy  through  the  mail  addressed  to  the  tenant  at 
the  place  where  the  property  is  situated.  Service  upon  a 
subtenant  may  be  made  in  the  same  manner.  En.  March 
11,  1872.     Am'd.  1873-4,  347. 

Gal.  Rep.  Cit.     56,  129;   63,  52;   63.  611;   66,  447;   70,  446; 
105,  19;   125,  617. 


§  1163.  Jurisdiction  of  superior  courts.  The  superior 
court  of  the  county  in  which  the  property,  or  some  part  of 
it,  is  situated,  shall  have  jurisdiction  of  proceedings  under 
this  chapter;  provided,  that  justices'  courts,  within  their 
respective  townships,  or  cities,  or  cities  and  counties  shall 
have  concurrent  jurisdiction  with  the  superior  courts  in 
oases  of  forcible  entry  and  detainer,  when  the  rental  value 
does  not  exceed  twenty-five  dollars  per  month,  and  when 
the  whole  amount  of  damages  claimed  does  not  exceed  two 
hundred  dollars.     En.  March  11,  1872.     Am'd.  1880,  8. 

Cal.  Rep.  Cit.     130,  98;   130,  99. 

Concurrent  jurisdiction  of  justices'  court:  Ante,  sec.  113, 
subd.  1. 


§  1164.  Parties  defendant.  No  person  other  than  the 
tenant  of  the  premises  and  subtenant,  if  there  be  one,  in 
the  actual  occui)ation  of  the  premises  when  the  complaint 


§§  1165,  1166  SUMMARY    PROCEEDINGS.  ^S 

is  filed,  need  be  made  parties  defendant  in  the  proceeding, 
nor  shall  any  proceeding  abate,  nor  the  plaintiff  be  non- 
suited for  the  nonjoinder  of  any  person  who  might  have 
been  made  party  defendant,  but  when  it  appears  that  any 
of  the  parties  served  with  process,  or  appearing  in  the  pro- 
ceeding, are  guilty  of  Ihe  offense  charged,  judgment  must 
be  rendered  against  him.  In  case  a  defendant  has  become 
a  subtenant  of  the  premises  in  controversy,  after  the  ser- 
vice of  the  notice  provided  for  by  part  two  of  section  eleven 
hundred  and  sixty-one  of  this  code,  uiron  the  tenant  of  the 
premises,  the  fact  that  such  notice  was  not  served  on  each 
subtenant  shall  constitute  no  defense  to  the  action.  In  case 
a  married  woman  be  a  tenant,  or  a  subtenant,  her  coverture 
shall  constitute  no  defense;  but  in  case  her  husband  be 
not  joined,  or  unless  she  be  doing  business  as  a  sole  trader, 
an  execution  issued  upon  a  personal  judgment  against  her 
can  only  be  enforced  against  property  on  the  premises  at 
the  commencement  of  the  action.  All  persons  vrtio  enter 
the  premises  under  the  tenant,  after  the  commencement  of 
the  suit,  shall  be  bound  by  the  judgment,  the  same  as  if 
he  or  they  had  been  made  party  to  the  action.  En.  March 
11,  1872.     Am'd.  1873-4,  348;   1885,  129. 

Cal.  Rep.  Cit     122,  437. 

Parties  plaintiff,  and  generally:   Post,  sec.  1165. 

§  1165.  Parties  generally.  Except  as  provided  in  the 
preceding  section  the  provisions  of  part  two  of  this  code, 
relating  to  parties  to  civil  actions,  are  applicable  to  this 
proceeding.    En.  March  11,  1872. 

See  sees.  367  et  seq.,  ante. 

Parties  defendant:  Sec.  1164. 


§  1166.  Complaint.  When  summons  must  be  issued. 
The  plaintiff,  in  his  complaint,  which  shall  be  in  writing, 
must  set  forth  the  facts  en  which  he  seeks  to  recover,  and 
describe  the  premises  with  reasonable  certainty,  and  may 
set  forth  therein  any  circumstances  of  fraud,  force,  or  vio- 
lence which  may  have  ax;companied  the  alleged  forcible  en- 
try or  forcible  or  unlawful  detainer  and  claim  dama'ges 
therefor.  In  case  the  unlawful  detainer  charged  be  after  de- 
fault in  the  payment  of  rent,  the  complaint  must  state  the 
amount  of  such  rent  Upon  filing  the  complaint,  a  summons 
must  be  issued  thereon  as  in   other  cases,  returnable  at  a  day 


439  SUMMARY    PROCEEDINGS.  S  ^^ 

designated  therein,  wliich  shall  not  be  less  than  three 
days,  nor  more  than  twelve  days  from  its  date,  except  in 
cases  when  the  publication  of  the  summons  is  necessary, 
in  which  case  the  court  or  a  judge  or  justice  thereof,  may 
order  that  the  summons  be  made  returnable  at  such  time, 
as  may  be  deemed  proper,  and  the  summons  shall  specify 
the  return  day  so  fixed.  En.  March  11,  1872.  Am'd.  1873-4, 
348;    1877-8,  107;   1880,  8. 

Complaint,  generally:   Sec.  426,  ante. 

Damages:  Sec.  1174. 

Amendment:   Ante,  sees.  472,  473. 

Verification:   Sees.  446,  ante,  1175,  post. 

Parties:  Ante,  sees.  1164,  1165. 

§  1167.  Summons,  form  and  service  of.  The  summons 
must  state  the  parties  to  the  proceeding,  the  court  in  which 
the  same  is  brought,  the  nature  of  the  action,  in  concise 
terms,  and  the  relief  sought,  and  also  the  return  day,  and 
must  notify  the  defendant  to  appear  and  answer  within  the 
time  designated,  or  that  the  relief  sought  will  be  taken 
against  him.  The  summons  must  be  directed  to  the  defend- 
ant, and  be  served  at  least  two  days  before  the  return  day 
designated  therein,  and  must  be  served  and  returned  in  the 
same  manner  as  summons  in  civil  actions  is  served  and  re- 
turned; provided,  that  if  it  appears  to  the  court  the  defend- 
ant is  concealing  himself  to  avoid  the  service  of  summons 
and  the  defendant  cannot  be  found  at  his  place  of  residence 
or  business,  or  if  his  place  of  residence  or  business  cannot 
be  ascertained,  the  court  may  order  the  summons  to  be 
served  by  affixing  a  copy  thereof  in  a  conspicuous  place  on 
the  property  involved  in  the  action,  and  also  delivering  a 
copy  to  a  person  there  residing,  if  such  person  can  be 
found,  and  also  sending  a  copy  thereof  through  the  mail 
addressed  to  the  defendant  at  the  place  where  the  property 
is  situated.  Upon  the  return  of  any  summons  issued  under 
this  chapter,  where  the  same  has  not,  for  any  reason,  been 
served,  or  not  served  in  time,  the  plaintiff  may  have  a  new 
summons  issued,  the  same  as  if  no  previous  summons  had 
Tjeen  issued.  En.  March  11,  1872.  Am'd.  1S73-4,  349;  1880, 
8;   1905,  428. 

Cal.  Rep.  Cit.     49,  273. 

Service  of  summons,  in  civil  action:    Sees.  40C  et  seq. 


J§  UGS-U72  SUMMARY    PROCEEDINGS.  MB 

S  1168.  Arrest.  If  the  complaint  presented  establishes, 
to  the  satisfaction  of  the  judge  or  justice,  fraud,  force,  or 
violence,  in  the  entry  or  detainer,  and  that  the  possession 
held  is  unlawful,  he  may  make  an  order  for  the  arrest  of 
the  defendant.    En.  March  11,  1872.      Am'd.  1880,  9. 

CaL  Rep.  Cit     92,  371. 

Arrest,  generally:  Ante,  sees.  478  et  seq. 

§  1169.  Judgment  by  default.  If,  at  the  time  appointed, 
the  defendant  do  not  appear  and  defend,  the  court  must 
enter  his  default,  and  render  judgment  in  favor  of  the 
plaintiff,   as  prayed   for  in   the  complaint.     En.   March  11, 

1872. 

Judgment  by  default,  generally:  Ante,  sec.  585. 

§  1170.  Defendant  may  appear,  etc.  On  or  before  the 
day  fixed  for  his  appearance,  the  defendant  may  appear  and 
answer  or  demur.     En.  March  11,  1872. 

Appearance,  generally:   Ante,  sec.  1014. 

Answer — Scope  of:  Post,  sec.  1172;  verification:  Post, 
sec.  1175;  generally:   Ante,  sec.  437. 


§  1171.  Trial  by  jury.  Whenever  an  issue  of  fact  is 
presented  by  the  pleadings,  it  must  be  tried  by  a  jury, 
unless  such  jury  be  waived  as  in  other  cases.  The  jury 
shall  be  formed  in  the  same  manner  as  other  trial  juries 
in  the  court  in  which  the  action  is  pending.  En.  March  11, 
1872.     Am'd.   1873-4,  349;    1880,  9. 

Trial  by  jury:  Ante,  sees.  600-628;  issue  of  fact:  Ante, 
sees.  590  et  seq.;  waiver:  Ante,  sec.  631.  Formation  of  the 
jury:    Ante,  sees.   600-604. 

Justices'  coTirts — Trials   in:    Ante,  sees.   878-887. 

S  1172.    Showing  required  of  plaintiif  in  forcible  entry  or 

detainer.  Of  defendant.  On  the  trial  of  any  proceeding 
for  any  forcible  entry  or  forcible  detainer,  the  plaintiff 
shall  only  be  required  to  show,  in  addition  to  the  forcible 
entry  or  forcible  detainer  complained  of,  that  he  was  peace- 


441  SUMMARY    PROCEEDINGS.  |§   1173,  1174 

ably  in  the  actual  possession  at  the  time  of  the  forcible 
entry,  or  was  entitled  to  the  possession  at  the  time  of  the 
forcible  detainer.  The  defendant  may  show  in  his  defense, 
that  he  or  his  ancestors,  or  those  whose  interest  in  such 
premises  he  claims,  have  been  in  the  quiet  possession 
thereof  for  the  space  of  one  whole  year  together  next  be- 
fore the  commencement  of  the  proceedings,  and  that  his 
interest  therein  is  not  then  ended  or  determined;  and  such 
showing  is  a  bar  to  the  proceedings.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     60,  573;   60,  574;   67,  452;   69,  563;  77,  256; 
107,  302;   114,  348;  114,  349;   125,  265;   138,  421. 

Practice:   See  post,  sec.  1177. 


§  1173.  Complaint  must  be  amended  in  certain  cases. 
"When,  upon  the  trial  of  any  proceeding  under  this  chap- 
ter, it  appears  from  the  evidence  that  the  defendant  has 
been  guilty  of  either  a  forcible  entry,  or  a  forcible  or  un- 
lawful detainer,  and  other  than  the  offense  charged  In 
the  complaint,  the  judge  must  order  that  such  complaint 
be  forthwith  amended  to  conform  to  such  proofs;  such 
amendment  must  be  made  without  any  imposition  of  terms. 
No  continuance  shall  be  permitted  upon  account  of  such 
amendment,  unless  the  defendant,  by  affidavit  filed,  shows 
to  the  satisfaction  of  the  court  good  cause  therefor.  En. 
March  11,   1872.     Am'd.   1885,   102. 

Cal.  Rep.  Cit.  125,  566. 

Continuance,  generally:  Ante,  sec.  595. 

§  1174.  Verdict  and  judgment.  If,  upon  the  trial,  the 
•\:erdict  of  the  jury,  or,  if  the  case  be  tried  without  a  jury, 
the  finding  of  the  court  be  in  favor  of  the  plaintiff  and 
against  the  defendant,  judgment  shall  be  entered  for  the 
restitution  of  the  premises;  and  if  the  proceeding  be  for 
an  unlawful  detainer  after  neglect,  or  failure  to  perform 
the  conditions  or  covenants  of  the  lease  or  agreement 
under  which  the  property  is  held,  or  after  default  in  the 
pasonent  of  rent,  the  judgment  shall  also  declare  the  for- 
feiture of  such  lease  or  agreement.  The  jury,  or  the 
court,  if  the  proceeding  be  tried  without  a  jury,  shall  also 
assess  the  damages  occasioned  to  the  plaintiff  by  any 
forcible  entry,  or  by  any  forcible    or    unlawful    detainer, 


J§  1175,  1176  SUMMARY    PROCEEDINGS.  442 

alleged  in  the  complaint  and  proved  on  the  trial,  and  find 
the  amount  of  any  rent  due,  if  the  alleged  unlawful  de- 
tainer be  after  default  in  the  payment  of  rent,  and  the 
judgment  shall  be  rendered  against  the  defendant  guilty 
of  the  forcible  entry,  or  forcible  or  unlawful  detainer,  for 
three  times  the  amount  of  the  damages  thus  assessed, 
and  of  the  rent  found  due.  When  the  proceeding  is  for 
an  unlawful  detainer  after  default  in  the  payment  of 
rent,  and  the  lease  or  agreement  under  which  the  rent  is 
payable  has  not  by  its  terms  expired,  execution  upon 
the  judgment  shall  not  be  issued  until  the  expiration  of 
five  days  after  the  entry  of  the  judgment,  within  which 
time  the  tenant,  or  any  subtenant,  or  any  mortgagee  of 
the  term,  or  other  party  interested  in  its  continuance, 
may  pay  into  court,  for  the  landlord,  the  amount  found 
due  as  rent,  -with  interest  thereon,  and  the  amount  of  the 
damages  found  by  the  jury  or  the  court  for  the  unlawful 
(letainer,  and  the  costs  of  the  proceeding,  and  thereupon 
the  judgment  shall  be  satisfied  and  the  tenant  be  re- 
stored to  his  estate;  but  if  payment,  as  here  provided, 
be  not  made  within  the  five  days,  the  judgment  may  be 
enforced  for  its  full  amount,  and  for  the  possession  of  the 
premises.  In  all  other  cases  the  judgment  may  be  en- 
forced immediately.  En.  March  11,  1872.  Am'd.  1873-4, 
249. 

Cal.  Rep.  Cit.     57,  192;    90,  501;    91,  598;    125,  5G6;    138, 
283;   139,  142;    139,  143;    141,  623. 

Treble  damages:  See  ante,  sec.  735;  Civ.  Code,  sec. 
3345. 

Forfeiture,  relief  from:  Post,  sec.  1179. 

8  1175.  Verification  of  complaint  and  answer.  The 
complaint  and  answer  must  be  verified.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.     59,  481;    60,  375. 

8  1176.  Effect  of  an  appeal  upon  the  judgment.  An 
appeal  taken  hy  the  defendant  shall  not  stay  proceedings 
npon  the  judgment,  unless  the  judge  or  justice  before 
whom  the  same  was  rendered  so  directs.  En.  March  11. 
1872.     Am'd.  1880,  9. 


3  SUTVIMARY    PROCEEDINGS.  5§  U77-U79 

Cal.    Rep.    Cit.     71,    53G;      73,   641;     81,  227;     135,  661; 
135,  6C2;    139,  141;    139,  143. 

Appeal  as  stay — Generally:   Ante,  sees.  946,  949. 


§  1177.  Rules  of  practice.  Except  as  otherwise  pro- 
vided in  this  chapter,  the  provisions  of  part  two,  of  this 
code,  are  applicable  to,  and  constitute  the  rules  of  prac- 
tice in  the  proceedings  mentioned  in  this  chapter.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     91,  598. 

For  part  two:  See  ante,  sees.  307  et  seq. 

§  1178.  Appeals,  how  taken,  etc.  Provisions  of  part 
two  of  this  code,  relative  to  new  trials  and  appeals,  except 
in  so  far  as  they  are  inconsistent  with  the  provisions  of 
this  chapter,  apply  to  the  proceedings  mentioned  in  this 
chapter.     En.  March  11,  1872. 

See  ante,  sees.  656  et  seq.,  930  et  seq. 

§  1179.     Relief    against    forfeiture  of    lease.    The  court 

may  relieve  a  tenant  against  a  forfeiture  of  a  lease,  and 
restore  him  to  his  former  estate,  in  case  of  hardship, 
where  application  for  such  relief  is  made  within  thirty 
days  after  the  forfeiture  is  declared  by  the  judgment  of 
the  court,  as  provided  in  section  one  thousand  one  hun- 
dred and  seventy-four.  The  application  may  be  made 
by  a  tenant  or  subtenant,  or  a  mortgagee  of  the  term,  or 
any  person  interested  in  the  continuance  of  tho  term.  It 
must  be  made  upon  petition,  setting  forth  the  facts  upon 
which  the  relief  is  sought,  and  be  verified  by  the  appli- 
cant. Notice  of  the  application,  with  a  copy  of  the  peti- 
tion, must  be  served  on  the  plaintiff  in  the  judgment,  who 
may  appear  and  contest  the  application.  In  no  case  shall 
Ihe  application  be  granted  except  on  condition  that  full 
payment  of  rent  due,  or  full  performance  of  conditions  or 
covenants  stipulated,  so  far  as  the  same  is  practicable, 
be  made.     En.  Stats.  1873-4,  350.    Am'd.  1880,  9. 

Cal.   Rep.   Cit.     139,   663. 


S  11S«  LlENiS   IN    QENiiUiAU 


TITLE    IV. 

OF  THE  ENFORCEMENT  OF  LIENS. 

Chapter  I.     Liens  in  General,  §  1180. 

IL     Liens    of    Mechanics    and    Others    Upon    Real 
Property,   §§   1183-1203. 

IIL     Certain    Liens    for    Salaries    and    Wages,   §§ 
1204-1207. 


CHAPTER  L 

LIENS    IN    GENERAIj. 
§  1180.    Definition    of     lien. 

§  1180.  Definition  of  lien.  A  lien  is  a  charge  imposed 
upon  specific  property  by  which  it  is  made  security  lor 
the  performance  of  an  act.     En.  March  11,  1872. 

Cal.  Rep.  Cit,     71,  73;    115,  179;    134,  131. 

Lien,  definition  of:   Civ.  Code,  sec.  2872. 

Priority  of  liens:   Civ.  Code,  sec.  2897. 


446  LIENS    OF    MECHANICS,     ETC.  S  USa 

CHAPTER  II. 

LIENS    OF    MECHANICS    AND    OTHERS    UPON    REAL    PROPERTT. 

§  1183.  Mechanics'    liens    upon    what. 

§  1183%.  Building     contracts,     what     provisions     to     contain.     (Repealed.) 

§  1184.  Contract    price    payable    In    installments. 

§  1185.  What   Interest   in   the  land  subject  to   the   lien. 

§  1186.  Effect   of   liens. 

§  1187.  Claim   of  Hen  to  be  filed   in   recorder's  office. 

§  1188.  Liens  upon  two  or  more  pieces  of  property.    Amount  due   from 

each    to   be    designated. 

I  1189.  Claim    to    be    recorded.     Fees    of    recorder. 

§  1190.  Time   of  continuance   of   lien. 

§  1191.  Lien   upon   lot   for  Improving. 

§  1192.  At  Instance  of  owner,  what  lield  to  be  constructed. 

§  1193.  Contractor;    Hens    for   claims   against. 

§  1194.  Court   to   declare   rank   of   liens.     Deficiency   to   be   docketed. 

§  1195.  Any   number   of   llenholders   may   join   In   action. 

§  1196.  Attachment,    etc.,    against    materials. 

§  1197.  Lien  vioes  not  Impair  right  to  proceed  for  recovery  of  the  debt. 

§  1198.  Rules   of   practice, 

g  1199.  New   trials   and   appeals. 

§  1200.  Where    contractor   falls    to    perform    contract. 

§  1201.  Written   consent  to  waive   claims. 

§  1202.  What   forfeits    Hens. 

§  1203.  Bond   of   contractor   to   be    filed. 

Gen.  Cit.  to  Chap.— Cal.  Rep.  Cit.  54,  220;    87,  5D1;    68, 
266. 

§  1183.  Mechanics'  Men  upon  what.  Mechanics, 
materialmen,  contractors,  subcontractors,  artisans,  archi- 
tects, machinists,  builders,  miners,  and  all  persons  and 
laborers  of  every  class  performing  labor  upon  or  furnish- 
ing materials  to  be  used  In  the  construction,  alteration, 
addition  to,  or  repair,  either  in  v>'hole  or  in  part,  of  any 
building,  wharf,  bridge,  ditch,  flume,  aqueduct,  well,  tun- 
nel, fence,  machinery,  railroad,  wagon  road  or  other 
structure,  shall  have  a  lien  upon  the  property  upon  which 
they  have  bestowed  labor  or  furnished  materials,  for  the 
value  of  such  labor  done  and  materials  furnished,  whether 
at  the  instance  of  the  owner,  or  of  any  other  person 
acting  by  his  authority  or  under  him,  as  contractor  or 
otherwise;  and  any  person  who  performs  labor  In  any 
raining  claim  or  claims,  or  In  or  upon  any  real  property 
worked  as  a  mine,  either  in  the  development  thereof  or  In 
■working  thereon  by  the  subtractive  process,  has  a  lien 
upon  the  same,  and  the  works  owned  and  used  by  the 
owners  for  reducing  the  ores  from  such  mining  claim  or 
claims,  or  real  property  so  worked  as  a  mine,  for  the 
work  or  labor  done  or  materials  furnished  by  each  re- 
spectively, whether  done  or  furnished   at  the  Instance  of 


§  1183  LIENS   OF   MECHANICS,    ETC.  *♦« 

the  owner  of  such  mining  claim  or  claims  or  real  property 
worked  as  a  mine  or  of  the  building,  or  other  improve- 
ment, or  his  agent;  and  every  contractor,  subcontractor, 
architect,  builder,  or  other  person  having  charge  of  any 
mining,  or  work  and  labor  performed  In  and  about  such 
mining  claim  or  claims,  or  real  property  worked  as  a 
mine,  or  the  construction,  alteration,  addition  to,  or  repair, 
either  in  whole  or  In  part  of  any  building  or  other  improve- 
ment as  aforesaid,  or  of  such  mining  claim  or  claims, 
either  as  lessee  or  under  a  working  bond  or  contract  there- 
on, with  the  privilege  of  purchase,  or  otherwise,  shall  be 
held  to  be  the  agent  of  the  owner  for  the  purposes  of  this 
chapter.  In  case  of  a  contract  for  the  work  between  the 
reputed  owner  and  his  contractor,  the  liens  shall  extend 
to  the  entire  contract  price,  and  such  contract  shall  operate 
as  a  lien  in  favor  of  all  persons,  except  the  contractor,  to 
the  extent  of  the  whole  contract  price,  and  after  all  such 
Hens  are  satisfied,  then  as  a  lien  ior  any  balance  of  the 
contract  price  in  favor  of  the  contractor.  All  such  con- 
tracts shall  be  in  writing  when  the  amount  agreed  to  be 
paid  thereunder  exceeds  one  thousand  dollars,  and  shall 
be  subscribed  by  the  parties  thereto;  and  the  said  con- 
tract, or  a  memorandum  thereof,  setting  forth  the  names 
of  all  the  parties  to  the  contract,  a  description  of  the 
property  to  be  affected  thereby,  together  with  a  state- 
ment of  the  general  character  of  the  work  to  be  done, 
the  total  amount  to  be  paid  thereunder,  and  the  amounts  of 
all  partial  payments,  together  with  thfe  times  when  such 
payments  shall  be  due  and  paj'able,  shall,  before  the  work 
Is  commenced,  be  filed  in  the  office  of  the  county  recorder 
of  the  county,  or  city  and  county,  where  the  property  is 
situated,  who  shall  receive  one  dollar  for  such  filing; 
otherwise,  they  shall  be  wholly  void,  and  no  recovery 
shall  be  had  thereon  by  either  party  thereto;  and  In  such 
case,  the  labor  done  and  materials  furnished  by  all  persons 
aforesaid,  except  the  contractor,  shall  be  deemed  to  have 
been  done  and  furnished  at  the  personal  instance  of  the 
owner,  and  they  shall  have  a  lien  for  the  value  thereof. 
En.  March  11,  1872.  Am'd.  1873-4,  409;  1880,  63;  1885,  143; 
1887,  152;  1899,.  33;    1903,  84. 

Cal.  Rep.  Clt.  54,  336;  55,  163;  55,  392;  56,  309;  61,  353; 
61,  354;  66,  196;  66,  197;  66,  292;  70,  126;  70,  189; 
70,  220;  70,  221;  74,  626;  74,  627;  75,  212;  76,  436; 
78,  196;  78,  19<;  78,  201;  80,  278;  80,  ol2;  81,  171; 
81.    173;    81,    175;    81,   643;    81,   644;    81,    645;    82,    43; 


447  LIENS   OF  MECHANICS,    ETC.  5§  1183»/4.  1184 

82,   44;     82,    45;     82,    149;  82,  150;  83,    372;    86     24 

86,   26;     87,    593;     88,    22;  88,  42;  89,    112;' 90, '578 

90,  599;    90,   601;    90,    602;  91,  138;  91,    139;    91,   236 

91,  237;  91,  561;  92,  237;  94,  207;  94,  208;  94,  234 
94,   236;    94.   560;    95,   393;  95,  394;  95,   395;    96,    257 

96,  442;    97,    11;    97,    188;    97,    257;    97,    266;    97,    645 

97,  646;  98,  152;  98,  154:  99,  319;  99,  453;  99,  454 
102,  140;  302,  142;  104,  31;  104,  507;  107,  60;  107,  64 
107,  623;  109,  397;  109,  549;  110,  168;  110,  510;  111 
293;  112,  291;  113,  123;  114,  492;  115,  343;  115,  661 
117,  214;  117,  472;  117,  671;  117,  699;  118,  154;  120 
95;  120,  96;  120,  184;  120,  285;  120,  456;  120,  457 
121,  155;   122,  81;   123,  533;    124,  28;    126,  13;   126,   14 

126,  567;    127,  10;    127,  25;    127.  41;    127,  43;    127,  44 

127,  328;  128,  147;  128,  330;  128,  366;  129,  65;  129 
394;  129,  395;  131,  144;  132,  495;  133,  118;  133,  172 
133,  173;  133,  177;  133,  286;  133,  288;  136,  125;  138 
833;  138.  430;  138,  614;  138,  616;  139,  380;  140,  504 
141,  32;  142,  242;   144,  99;   144,  102;   146,  688;   147,  492 

§  1183'^.     Building      contracts,     what     provisions     must 
contain.     (Repealed.)     En.  1900-01,  817.     Rep.  1903,  21. 

Cal.    Rep.    Cit.     142,    203. 

§  1184.  Contract  price  payable  In  Installments.  No 
part  of  the  contract  price  shall,  by  the  terms  of  any  such 
contract,  be  made  payable,  nor  shall  the  same  or  any  part 
thereof  be  paid  in  advance  of  the  commencement  of  the 
work,  but  the  contract  price  shall,  by  the  terms  of  the  con- 
tract, be  made  payable  in  installments  at  specified  times 
after  the  commencement  of  the  work,  or  on  the  completion 
of  specified  portions  of  the  work,  or  on  the  completion 
of  the  whole  work;  provided,  that  at  least  twenty-five  per 
cent  of  the  whole  contract  price  shall  be  made  payable  at 
least  thirty-five  days  after  the  final  completion  of  the 
contract.  No  payment  made  prior  to  the  time  when  the 
same  Is  due,  under  the  terms  and  conditions  of  the  con- 
tract, shall  be  valid  for  the  purpose  of  defeating,  diminish- 
ing, or  discharging  any  lien  In  favor  of  any  person,  except 
the  contractor,  but  as  to  such  liens,  such  payment  shall 
be  deemed  as  if  not  made,  and  shall  be  applicable  to 
such  liens,  notwithstanding  that  the  contractor  to  whom 
it  was  paid  may  thereafter  abandon  his  contract,  or  be  or 
become  Indebted  to  the  reputed  owner  In  any  amount  for 
damages  or  otherwise,  for  nonperformance  of  his  contract 


§  lis*  LIENS    OF   MECnANICS,    ETC.  443 

or  othei'wlse.  As  to  all  liens,  except  that  of  the  contractor, 
the  whole  contract  price  shall  be  payable  in  money,  and 
shall  not  be  diminished  by  any  prior  or  subsequent  Indebt- 
edness, offset,  or  counterclaim,  in  favor  of  the  reputed 
owner  and  against  the  contractor;  no  alteration  of  any  such 
contract  shall  affect  any  lien  acquired  under  the  provisions 
of  this  chapter.  In  case  such  contracts  and  alterations 
thereof  do  not  conform  substantially  to  the  provisions  of 
this  section,  the  labor  done  and  materials  furnished  by 
all  persons  except  the  contractor  shall  be  deemed  to  have 
been  done  and  fmnished  at  the  personal  instance  and 
request  of  the  person  who  contracted  vrith  the  contractor, 
and  they  shall  have  a  lien  for  the  value  thereof.  Any  of 
the  persons  mentioned  in  section  eleven  hundred  and 
eighty-three,  except  the  contractor,  may  at  any  time  give 
to  the  reputed  owner  a  written  notice  that  they  have  per- 
formed labor  or  furnished  materials,  or  both,  to  the  con- 
tractor, or  other  person  acting  by  authority  of  the  reputed 
owner,  or  that  they  have  agreed  to  do  so,  stating  in  general 
terms  the  kind  of  labor  and  materials,  and  the  name  of  the 
person  to  or  for  whom  the  same  was  done  or  furnished,  or 
both,  and  the  amount  in  value,  as  neir  as  may  be,  of  that 
already  done  or  furnished,  or  both,  and  of  the  whole  ag^reed 
to  be  done  or  furnished,  or  both.  Such  notice  may  be 
given  by  delivering  the  same  to  the  reputed  owner  person- 
ally, or  by  leaving  it  at  his  residence  or  place  of  business, 
with  some  person  in  charge,  or  by  delivering  it  to  his 
architects,  or  by  leaving  it  at  their  residence  or  place  of 
business,  with  some  person  in  charge,  or  by  posting  it  In 
a  conspicuous  place  upon  the  mining  claim  or  improve- 
ment. No  such  notice  shall  be  invalid  by  reason  of  any 
defect  of  form,  provided  it  is  sufficient  to  inform  the 
reputed  owner  of  the  substantial  matters  herein  provided 
for,  or  to  put  him  upon  inquiry  as  to  such  matters.  Upon 
such  notice  being  given,  it  shall  be  the  duty  of  the  person 
who  contracted  with  the  contractor  to,  and  he  shall,  with- 
hold from  his  contractor,  or  from  any  other  person  acting 
under  such  reputed  owner,  and  to  whom  by  said  notice  the 
said  labor  or  materials,  or  both,  have  been  furnished,  or 
ogreed  to  be  furnished,  sufficient  money  due,  or  that  may 
become  due  to  such  contractor,  or  other  person,  to  answer 
such  claim  and  any  lien  that  may  be  tiled  therefor  for 
record  under  this  chapter,  including  counsel  fees  not  ex- 
ceeding one  hundred  dollars  in  each  case,  besides  reason- 
able costs  provided  for  in  this  chapter.  En.  March  11, 
1872.     Am'd.    1S85,    144;    1887,    153. 


449  IJ;ENS    of    mechanics,    etc.  §§  llS5-nS7 

Cal.  Rep.  Cit  61,  353;  81,  174;  81,  643;  81,  644;  82,  44 
82,   149;     86,   24;     86,   25;     88,   26;     87,    593;     87,    594 

90,  546;    90,   547;    90,  548;    90,   578;    90,    600;    91,   139 

91,  140;  91,  365;  91,  561;  92,  237;  94,  234;  94,  560 
94,  561;  97,  188;  97,  645;  99,  635;  104,  225;  107,  60 
107,  65;  109,  551;  111,  667;  112,  291;  119,  182;  122,  81 
124,  27;  124,  513;  125,  226;  125,  589;  126,  14;  129,  413 
130.  238;  130,  239;  130,  242;  131,  136;  132,  495;  133 
117;  133,  243;  133,  244;  135,  640;  135,  642;  136,  124 
136,  126;  138,  427;  138,  429;  138,  430;  138,  628;  139 
382;    146,  269;    146,  270;   146,   271;    146,  273;    146,   276 

§  1185.  What  Interest  in  the  land  subject  to  the  lien. 
The  land  upon  which  any  building,  improvement,  well,  or 
structure  is  constructed,  together  with  a  convenient  space 
about  the  same,  or  much  as  may  be  required  for  the 
convenient  use  and  occupation  thereof,  to  be  determined 
by  the  court  on  rendering  judgment  is  also  subject  to  the 
lien,  if  at  the  commencement  of  the  work,  or  the  furnish- 
ing of  the  materials  for  the  same,  the  land  belonged  to 
the  person  who  caused  said  building,  improvement,  well, 
or  structure  to  be  constructed,  altered,  or  repaired,  but  if 
such  person  owned  less  than  a  fee  simple  estate  in  such 
land,  then  only  his  interest  therein  is  subject  to  such  lien. 
En.  March  11,  1872.     Am'd.  1873-4,  351;   1899,  24. 

Cal.  Rep.  Cit  54,  627;  61,  353;  66,  196;  66,  197;  66,  292 
70,  126;  74,  360;  80,  277;  80,  278;  80,  279;  87,  512 
94,  211;  98,  286;  109,  551;  120,  284;  120,  285;  126,  12 
146,  687;   146,  688;   147,  493;   147,  495. 

§  1186.  Effect  of  liens.  The  liens  provided  for  in  this 
chapter  are  preferred  to  any  lien,  mortgage,  or  other  en- 
cumbrance which  may  have  attached  subsequent  to  the 
time  when  the  building.  Improvement,  or  structure  was 
commenced,  work  done,  or  materials  were  commenced  to 
be  furnished;  also,  to  any  lien,  mortgage  or  other  encum- 
brance of  which  the  lienholder  had  no  notice,  and  which 
was  unrecorded  at  the  time  the  building.  Improvement 
or  structure  was  commenced,  work  done,  or  the  materials 
were  commenced  to  be  furnished.     En.   March   11,   1872. 

Cal.  Rep.  Cit  57,  49;  61,  354;  66,  199;  66,  200;  66,  201; 
74,  360;  80,  67;   87,  627;  131,  144;  140,  505;   142,  243. 

Parties   to   suit:   Sec.    1190. 

§  1187.  Claim  of  lien  to  be  filed  in  recorder's  office. 
The   owner   of   any    property    on    which    labor    has     been 

Code    Civil   Proc— 29. 


§  1187  LIENS   OF   MECHANICS,    ETC.  450 

performed,  or  for  which  materials  have  been  furnished  to 
be  used  in  the  construction,  alteration,  addition  to,  or 
repair,  either  in  v/hole  or  in  part,  of  any  work,  mentioned 
In  section  eleven  hundred  and  eighty-three  of  this  co^le 
m  st,  within  ten  days  after  the  completion  thereof,  or 
within  forty  days  after  cessation  from  labor  upon  any 
unfinished  contract,  or  upon  any  unfinished  building,  im- 
provement, or  structure,  or  the  alteration,  addition  to, 
or  the  repair  thereof,  file  for  record  in  the  office  of  the 
county  recorder  of  the  county,  or  city  and  county,  in  which 
such  property  or  some  part  thereof  is  situated,  a  notice 
setting  forth  the  date  when  such  building,  improvement, 
or  structure,  or  the  alteration,  addition  to,  or  repair  there- 
of, was  actually  completed,  or  in  case  of  cessation  from 
labor  for  thirty  days,  the  date  on  which  such  cessation  ac- 
tually occurred,  and  said  notice  shall  also  contain  the  name 
and  the  nature  of  the  title  of  the  person  who  caused  the 
said  building.  Improvement,  or  structure  to  be  erected,  or 
said  alteration,  addition  to,  or  repair  to  be  made,  and  also 
a  description  of  the  property  sufficient  for  identification, 
and  said  notice  must  be  verified  by  said  owner  or  some 
other  person  in  his  behalf.  In  case  any  such  owner  neglect 
to  file  said  notice  as  herein  required,  within  the  time  here- 
in required,  then  the  said  owner  and  all  persons  deraigning 
title  from  him,  and  all  persons  claiming  an  interest  in  said 
property,  shall  be  estopped  in  any  proceedings  brought  to 
foreclose  any  mechanics'  Hen  or  liens,  provided  for  In 
this  chapter,  from  maintaining  a  defense  therein  based  on 
the  ground  that  said  lien  or  liens  have  not  been  filed  within 
the  time  provided  in  this  chapter.  Said  notice,  when  so 
filed  for  record  must  be  recorded  by  the  county  recorder 
with  whom  the  same  is  filed  for  record,  and  the  fee  for 
recording  the  sajne  shall  be  the  sum  of  one  dollar. 

Every  original  contractor,  at  any  time  after  the  comple- 
tion of  his  contract,  and  until  the  expiration  of  sixty  days 
after  the  filing  of  said  notice  of  completion  or  notice  of 
cessation  of  labor  by  the  owner,  and  every  person  save  the 
original  contractor  claiming  the  benefit  of  this  chapter  at 
any  time  after  the  completion  of  any  building,  improve- 
ment, or  structure,  or  of  the  alteration,  addition  to,  or 
repair  thereof,  and  until  the  expiration  of  thirty  days 
after  the  filing  of  said  notice  of  completion  or  cessation 
by  said  owner,  or  within  thirty  days  after  the  performance 
of  any  labor  in  a  mining  claim,  must  file  for  record  with 
the  county  recorder  of  the  county,  or  city  and  county.  In 
which   such   property   or  some  part  thereof  Is  situated,   a 


451  LIENS    OF    MECHANICS,    ETC,  §  1187 

claim  containing  a  statement  of  his  demand,  after  deduct- 
ing all  just  credits  and  offsets,  with  the  name  of  the 
owner  or  reputed  owner,  if  known,  and  also  the  name  of 
the  person  by  whom  he  was  employed,  or  to  whom  he 
furnislied  the  materials,  with  a  statement  of  the  terms, 
time  given,  and  conditions  of  his  contract,  and  also  a  de- 
scription of  the  property  to  be  charged  with  the  lien,  suffi- 
cient for  identification,  which  claim  must  be  verified  by  the 
oath  of  himself  or  of  some  other  person;  provided,  how- 
ever, that  in  any  event  all  claims  of  lien  must  be  filed 
within  ninety  days  after  the  completion  of  said  building, 
improvement,  or  structure,  or  the  alteration,  addition  to  or 
repair  thereof.  Any  trivial  imperfection  in  the  said  work, 
or  "in  the  construction  of  any  building,  Improvement,  or 
structure,  or  of  the  alteration,  addition  to,  or  repair  there- 
of, shall  not  be  deemed  such  a  lack  of  completion  as  to 
prevent  the  filing  of  any  lien;  and  in  all  cases  the  occu- 
pation or  use  of  a  building,  improvement,  or  structure,  by 
the  owner,  or  his  representative,  or  the  acceptance  by  said 
owner  or  his  agent  of  said  building,  improvement,  or  struc- 
ture', and  cessation  from  labor  for  thirty  days  upon  any 
contract  or  upon  any  building,  improvement,  or  structure, 
or  the  alteration,  addition  to,  or  repair  thereof,  shall  be 
deemed  equivalent  to  a  completion  thereof  for  all  the  pur- 
poses of  this  chapter.  En.  March  11,  1872  Am'd.  1873-4, 
410;   1887,  154;  1897,  202. 

Cal.  Rep.  Cit  54,  221;  54,  222;  54,  642;  55,  391;  60,  441 
CI,  353;  63,  104;  G3,  430;  C5,  341;  70,  126;  72,  79 
74,  277;  74,  278;  74,  279;  74,  433;  76,  510;  78,  195 
78,  196;  80,  276;  81,  646;  82,  146;  82,  150;  82,  151 
82,  658;  85,  83;  85,  85;  86,  342;  87,  512;  87,  629 
88,  22;  88,  23;  88,  150;  90,  545;  90,  594;  90,  595 
90,  597;  90,  601;  91,  140;  91,  365;  92,  237;  94,  208 
94,  237;  94,  238;  96,  334;  96,  337;  96,  338;  96,  386 
97,  257;  97,  265;  102,  140;  102,  325;  103,  106;  103,  107 
106,  232;  lOG,  235;  107,  65;  109,  180;  109,  550;  109,  551 
110,  165;  110,  167;  110,  168;  115,  3;  115,  662;  119,  379 
120,  139;  120,  183;  120,  184;  122,  104;  122,  105;  124,  26 
134,  513;  125,  226;  125,  283;  125,  284;  125,  373;  127,  44 
131,  160;  132,  494;  133,  119;  135,  639;  136,  91;  138,  614 
138,  616;   138,  617;   141,  33;   146,  332;   147,  494. 

Verification  of  claim:  Ante,  sec.  446. 


{§  llSS-1131  UENS   OF   MECHANICS.    ETC.  452 

S  1188.  Liens  upon  two  or  more  pieces  of  property. 
Amount  due  from  each  to  be  designated.  In  every  case 
In  ■which  one  claim  is  filed  against  two  or  more  buildings, 
mining  claims  or  other  improvements  owned  by  the  same 
person,  the  person  filing  such  claim  must,  at  the  same  time, 
designate  the  amount  due  to  him  on  each  of  such  buildings, 
mining  claims,  or  other  improvements;  otherwise  the  lien 
of  such  claim  Is  postponed  to  other  liens.  The  lien  of  such 
claimant  does  not  extend  beyond  the  amount  designated, 
as  ag-ainst  other  creditors  having  liens  by  judgment,  mort- 
gage, or  otherwise,  upon  either  of  such  buildings  or  other 
Improvements,  or  upon  the  land  upon  which  the  same  are 
situated.     En.  March  11,  1872. 

Cal.  Rep.  Clt.    55,  163;   55.  285:  61.  353;   72,  84;   88,  43; 
102,  141;   110,  510. 

§  1189.  Claim  to  be  recorded.  Fees  of  recorder.  The 
recorder  must  record  the  claim  in  a  book  kept  by  him 
for  that  purpose,  which  record  must  be  indexed  as  deeds 
and  other  conveyances  are  required  by  law  to  be  indexed, 
and  for  which  he  may  receive  the  same  fees  as  are  allowed 
by  law  for  recording  deeds  and  other  instruments.  En. 
March  11,  1872. 

5  1190.  Time  of  continuance  of  Hen.  No  lien  proyided 
for  in  this  chapter  binds  any  building,  mining  claim,  im- 
provement, or  structure,  for  a  longer  period  than  ninety 
days  after  the  same  has  been  filed,  unless  proceedings  be 
commenced  in  a  proper  court  within  that  time  to  enforce 
the  same;  or,  if  a  credit  be  given,  then  ninety  days  after 
the  expiration  of  such  credit;  but  no  lie-n  continues  in 
force  for  a  longer  time  than  two  years  from  the  time  the 
work  is  completed,  by  any  agreement  to  give  credit  En- 
March  11,  1872. 

Cal.  Rep.  Cit     63,  122;  74,  278;  74,  279;  82,  658;  107,  65. 

Complaint,  generally:   Ante,  sea  426. 

Personal  action:  Post,  sec.  1197. 

§  1191.  Lien  upon  lot  for  improving.  Any  person  who, 
at  the  request  of  the  reputed  owner  of  any  lot  in  any 
incorporated  city  or  town,  grades,  fills  in,  or  otherwise  im- 
proves, the  same,  or  the  street  or  sidewalk  in  front  of  or 
adjoining  the  same,  or  constructs  any  areas,  or  vaults,  or 


453  LIEKS   OF  MECHANICS,    ETC.  55  1192,  1193 

cellars,  or  rooms,  under  said  sidewalks,  or  makes  any 
improvements  in  connection  therewith,  has  a  lien  upon 
said  lot  for  his  work  done  and  materials  furnished.  En. 
March  11,  1872.     Am'd.  1885,  145;   1887,  155. 

Cal.  Rep.  Cit.  72,  512;  80,  67;  96,  257;  110,  3G3;  110,  510; 
117,  213;  117,  214;  119,  412;  126,  13;  131,  225;  133,  115; 
133,  117;  133,  118;  138,  575;  145,  201;  145,  263;  145, 
265. 

§  1192.  At  Instance  of  owner,  what  held  to  be  con- 
structed. Every  building  or  other  improvement  men- 
tioned in  section  one  thousand  one  hundred  and  eighty- 
three  of  this  code,  constructed  upon  any  lands  with  the 
knowledge  of  the  owner,  or  the  person  having  or  claim- 
ing any  Interest  therein,  shall  be  held  to  have  been  con- 
structed at  the  instance  of  such  owner  or  person  having  or 
claiming  any  interest  therein,  and  the  Interest  owned  or 
claimed  shall  be  subject  to  any  lien  filed  in  accordance  with 
the  provisions  of  this  chapter,  unless  such  owner  or  person 
having  or  claiming  an  interest  therein  shall,  within  three 
days  after  he  shall  have  obtained  knowledge  of  the  con- 
struction, alteration,  or  repair,  or  the  intended  construc- 
tion, alteration,  or  repair,  give  notice  that  he  will  not  be 
responsible  for  the  same,  by  posting  a  notice  in  writing  to 
the  effect,  in  some  conspicuous  place  upon  said  land,  or 
upon  the  building  or  other  improvement  situated  thereon. 
En.  March  11,  1872.     Am'd.  1873-4,  410. 

Cal.  Rep.  Cit.  54,  336;  55,  163;  66,  200;  66,  201;  72,  513; 
80,  277;  80,  278;  80,  279;  80,  280;  82,  145;  82,  146; 
86,  340;  87,  513;  87,  627;  104,  34;  114.  492:  114.  493; 
116,  335;  117,  214;  118,  152;  119,  379;  120,  139;  120,  284; 
122,  518;  122,  520;  122,  522;  126.  567;  128,  366;  131, 
162;  133,  117;  133,  118;  133,  288;  133,  289;  139,  498;  140, 
504. 

§  1193.  Contractor;  Hens  for  claims  against.  The  con- 
tractor shall  be  entitled  to  recover  upon  a  lien  filed  by 
him  only  such  amount  as  may  be  due  to  him  aocording 
to  the  terms  of  his  contract,  after  deductiwg  all  claims  of 
other  parties  for  work  done  and  materials  furnished,  as 
aforesaid;  and  in  all  cases  where  a  lien  shall  be  filed,  under 
this  chapter,  for  work  done  or  materials  furnished  to  any 
contractor,  he  shall  defend  any  action  brought  thereupon 
at  his  own  expense;  and  during  the  pendency  of  such  ac- 
tlon«   tbe  owner  may   -withhold  frcon  t!r.  ''"contxactor  tiie 


§§  nOi,  1135  LIENS   OF    MECHANICS,    ETC.  4S4 

amount  of  money  for  which  [such]  lien  is  filed;  and  in 
case  of  judgment  against  the  owner  or  his  property,  upou 
the  lien,  the  said  owner  shall  be  entitled  to  deduct  from 
any  amount  due  or  to  become  due  by  bim  to  the  contractor, 
the  amount  of  such  judgment  and  costs;  and  if  the  amount 
of  such  judgment  and  costs  shall  exceed  the  amount  due 
by  him  to  the  contractor,  or  if  the  owner  shall  have  settled 
with  the  contractor  in  full,  he  shall  be  entitled  to  recover 
back  from  the  contractor  any  amount  so  paid  by  him,  the 
said  owner,  in  excess  of  the  contract  price,  and  for  which 
the  contractor  was  originally  the  party  liable.  En.  March 
11,  1872.  Am'd.  1873-4,  411. 
Cal.  Rep.  Cit.  55,  392;  78,  200;  99,  634;  107.  275;  123. 
533;     123,  534;     146,  284;     146.  285. 

§  1194.  Court  to  declare  rank  of  liens.  Deficiency  to 
be  docketed.  In  every  case  in  which  different  liens  are 
asserted  against  any  property,  the  court  in  the  judgment 
must  declare  the  rank  of  each  lien,  or  class  of  liens, 
which  shall  be  in  the  following  order,  viz.: 

1.  All  persons  performing  manual  labor  in,  or  about 
the  same. 

2.  Persons   furnishing   materials. 

3.  Subcontractors. 

4.  Original  contractors. 

And  the  proceeds  of  the  sale  of  the  property  must  be 
applied  to  each  lien  or  class  of  liens  in  the  order  of  its 
rank;  and  whenever,  in  the  sale  of  the  property  subject 
to  the  lien,  there  is  a  deficiency  of  proceeds,  judgment 
may  be  docketed  for  the  deficiency  in  like  manner  and 
with  like  effect  as  in  actions  for  the  foreclosure  of  mort- 
gages.    En.   March  11,  1872.     Am'd.  1873-4,  412;     1885,  145. 

Cal.  Rep.  Cit.  55,  391;  55,  392;  78,  199;  78,  200;  90, 
376;  90,  548;  92,  237;  107,  197;  126,  684;  126,  685; 
135,  640;    135,  641. 

Deficiency  judgment:  Ante,  sec.  726. 

§  1195.     Any  number  of  lienholders  may  join  in  action. 

Any  number  of  persons  claiming  liens  may  join  in  the 
same  action,  and  when  separate  actions  are  commenced, 
the  court  may  consolidate  them..  The  court  must  also 
allow,  as  a  part  of  the  costs,  the  money  paid  for  filing  and 
recording  the  lien,  and  reasonable  attorneys'  fees  in  the 
superior  and  supreme  courts,  such  costs,  and  attorneys' 
fees  to  be  allowed  to  each  lien  claimant  whose  lien  is  es- 


455  LIENS    OF   MECHANICS,    ETC.  §S  1196-1199 

tablished,     whether     he     he    plaintiff    or    delendant,    or 
whether  they  all  join  in  one   action,  or  separate   actions 
are  consolidated.     En.  March  11,  1872.     Am'd.  1873-4,  412; 
1885,  146. 
Cal.    Rep.    Cit     60,  440;     68,  263;     72,  397;     74,  279;     74, 

535;     76,  582;     78,  200;     80,   281;     84,  539;     87,   513; 

88,  42;    90,  548;    91,  554;    94,  193;    94,  194;    94,  232; 

99,    634;      100,   490;     106,   234;     107,   195;     107,   275; 

110,    165;     115,    5;     124,    516;     127,    328;     127,    642; 

140,  507;    146,  285. 
■Consolidation  of  actions — Generally:   Ante,  sec.  1048. 

§  1196.  Attachment,  etc.,  against  materials.  When- 
ever materials  shall  have  been  furnished  for  use  in  the 
construction,  alteration  or  repair,  of  any  building  or  other 
improvement,  such  materials  shall  not  be  subject  to  at- 
tachment, execution,  or  other  legal  process,  to  enforce 
any  debt  due  by  the  purchaser  of  such  materials,  except  a 
debt  due  for  the  purchase  money  thereof,  so  long  as  in 
good  faith  the  same  are  about  to  be  applied  to  the  con- 
struction, alteration,  or  repair  of  such  building,  mining 
claim,  or  other  improvement,  Kn.  March  11, 1872.  Am'd, 
1873-4,  412. 

§  1197.  Lien  does  not  impair  right  to  proceed  for  re- 
covery of  the  debt.  Nothing  contained  in  this  chapter 
shall  be  construed  to  impair,  or  affect  the  right  of  any 
person  to  whom  any  debt  m.ay  be  due  for  work  done  or 
materials  furnished  to  maintain  a  personal  action  to  re- 
cover such  debt  against  the  person  liable  therefor.  En. 
March  11,  1872.     Am'd.  1873-4,  351. 

Cal.  Rep.  Cit.     70,  221;    95,  394;    107,  197. 

§  1198.  Rules  of  practice.  Except  as  otherwise  pro- 
vided in  this  chapter,  the  provisions  of  part  two  of  this 
code  are  applicable  to  and  constitute  the  rules  of  practice 
in  the  proceedings  mentioned  in  this  chapter.  En.  March 
11,  1872, 

See  ante,  sees.  307  et  seq. 

5  1199.  New  trials  and  appeals.  The  provisions  of  part 
two  of  this  code  relative  to  new  trials  and  appeals,  except 
in  so  far  as  they  are  inconsistent  with  the  provisions  of 
this  chapter,  apply  to  the  proceedings  mentioned  in  this 
chapter.     En.  March  11,  1872. 


§§  1200-1202  LIENS   OF    MECHANICS,    ETC.  «M 

Cal.  Rep.  Cit.     CI,  353. 

See  ante,  sees.  G56  et  seq.  and  sees.  936  et  seq. 

§  1200.  Where  contractor  fails  to  perform  contract.  In 
case  the  contractor  shall  fail  to  perform  his  contract  in 
full,  or  shall  abandon  the  same  before  completion,  the 
portion  of  the  contract  price  applicable  to  i*ne  liens  of 
other  persons  than  the  contractor  shall  be  fixed  as  fol- 
lows: From  the  value  of  the  work  and  materials  already 
done  and  furnished  at  the  time  of  such  failure  or  aban- 
donment, including  materials  then  actually  delivered  or  on 
the  ground,  which  shall  thereupon  belong  to  the  owner, 
estimated  as  near  as  may  be  by  the  standard  of  the  whole 
contract  price,  shall  be  deducted  the  payments  then  d  le 
and  actually  paid,  according  to  the  terms  of  the  contract 
and  the  provisions  of  sections  one  thousand  one  hundred 
and  eighty-three  and  one  thousand  one  hundred  and 
eighty-four,  and  the  remainder  shall  be  deemed  the  por- 
tion of  the  contract  price  applicable  to  such  liens.  En. 
Stats.  1885,  146. 

Cal.    Rep.    Clt     90,    593;     94,    237;      102,    444;     105,  US; 
132,   495. 

§  1201.  Written  consent  to  waive  claims.  It  shall  not 
be  competent  for  the  owner  and  contractor,  or  either  of 
them,  by  any  term  of  their  contract,  or  otherwise,  to 
waive,  affect,  or  impair  the  claims  and  liens  of  other 
persons,  whether  with  or  without  notice,  except  by  their 
written  consent,  and  any  term  of  the  contract  to  that  effect 
shall  be  null  and  void.     En.  Stats.  1885,  146. 

Cal.  Rep.  Cit.     97,  188;    133,  245;    146,  271. 

§  1202.  What  forfeits  liens.  Any  person  who  shall  will- 
fully give  a  false  notice  of  his  claim  to  the  owner,  under 
the  provisions  of  section  one  thousand  one  hundred  and 
eighty-four,  shall  forfeit  his  lien.  Any  person  who  shall 
willfully  include  in  his  claim,  filed  under  section  one 
thousand  one  hundred  and  eighty-seven,  work  or  mater- 
ials not  performed  upon  or  furnished  for  the  property  de- 
scribed in  the  claim  shall  forfeit  his  lien.  If  the  owner 
and  his  contractor  shall  directly  or  indirectly  conspire 
to  or  agree  that  the  written  contract  filed  shall  appear  to 
show  the  contract  price  to  be  less  than  it  really  is,  and 
it  shall  accordingly  so  show,  then  such  contract  shall  be 
wholly  void,  and  no  recovery  shall  be  had  thereon  by 
either  party  thereto,  and  in  such  case  the  lat)or  done  and 
materials    furnished  by  all  persons  except  the  contractor, 


457  LJENS    FOR    SALARIES.  §§  1203,  1204 

shall  be  deemed  to  have  been  done  and  furnished  at  the 
personal  instance  of  the  owner  and  they  shall  have  a  lien 
for  the  value  thereof.    En.  Stats.  1885,  146. 

Cal.  Rep.  Clt    91,  3C5;    91,  3C6;    lOG,  235. 


§  1203.  Bond  of  contractor  to  be  filed.  Every  contract 
required  to  be  filed  under  the  provisions  of  this  chapter 
shall  be  accompanied  by  a  good  and  sufficient  bond  in 
an  amount  equal  to  at  least  twenty-five  per  cent  of  the 
conti-act  price,  which  said  bond  shall  be  filed  at  the 
same  time  and  in  the  same  manner  as  herein  provided 
for  the  filing  of  such  contract  or  memorandum  thereof. 
Said  bond  shall,  by  its  tei'ms,  be  made  to  inure  to  the 
benefit  of  any  and  all  persons  who  perform  labor  for  or 
furnish  materials  to  the  contractor  or  any  person  acting 
for  him  or  by  his  authority;  and  any  such  person  shall 
have  an  action  to  recover  upon  said  bond,  against  the 
principal  and  sureties,  or  either  of  them,  for  the  value  of 
such  labor  or  materials,  or  both,  not  exceeding  the  amount 
of  the  bond;  but  such  action  shall  not  affect  his  lien  nor 
any  action  to  foreclose  the  same,  except  that  there  shall 
be  but  one  satisfaction  of  his  claim,  with  costs  and  coun- 
sel fees.  Any  failure  to  comply  with  the  provision  of  this 
section  shall  render  the  owner  and  contractor  jointly  and 
severally  liable  in  damages  to  any  and  all  materialmen, 
laborers  and  subcontractors  entitled  to  liens  upon  the 
property  affected  by  said  contract.  En.  Stats.  1885,  147. 
Rep.  1887,  155.     En.  1893,  202. 

Cal.  Rep.  Cit.  127,  387;  128,  145;  128,  146;  128,  147; 
128,  667;  128,  668;  128,  669;  129,  394;  133,  374; 
136,  57;  136,  126;  138,  544;  138,  546;  139,  193; 
139,  194;   139,  326;    139,  380;    140,  489;   145,  206. 


CHAPTER  m. 

CERTAIN   UENS   FOR    SALARIEIS   AND   WAGES. 

;  1304.  Wages   and   salaries   preferred    claims   In  cases   ot   asslgnmenta. 

§  1205.  Priority   of  wages   In   case   of   death    of   employer. 

§  1206.  Same   In   cases  of  execution   or  attachment. 

§  1207.  Dispute   of   claim   or  portion   thereof — Costs. 

§  1204.     Wages  and  salaries  preferred  claims  In  cases  of 
assignments.    In  all  assignments  of  property  made  by  any 


5§  1205,  1M6  LIENS    FOK    SALARIES.  45S 

person  to  trustees  or  assignees,  on  account  of  the  inabil- 
ity of  the  person,  at  the  time  of  the  assignment,  to  pay 
his  debts,  or  In  proceedings  in  insolvency,  the  wages  and 
salaries  of  the  miners,  mechanics,  salesmen,  servants, 
clerks,  laborers  employed  by  such  person  or  any  other 
person,  who  renders  services  or  performs  work  to  the 
amount  of  one  hundred  dollars  each,  and  for  services 
rendered  within  sixty  days  previously,  are  preferred 
claims,  and  must  be  paid  by  such  trustees  or  as- 
signees before  any  other  creditor  or  creditors  of  the  as- 
Blgnor.     En.  March  11,  1872.     Am'd.  1873-4.  352:    1893,  97. 

Cal.  Aep.   CIt.   84,   559;     125,  417. 

Assignments    for    benefit  of  creditors:   Civ.  Code,  sees. 
8449-3473. 


§  1205.  Priority  of  wages  In  case  of  death  of  employer. 
In  case  of  the  death  of  any  employer,  the  wages  of  each 
miner,  mechanic,  salesman,  clerk,  servant,  laborer,  or  any 
other  person  who  renders  services,  or  performs  work  for 
services  rendered  within  the  sixty  days  next  preceding  the 
death  of  the  employer,  not  exceeding  one  hundred  dollars, 
rank  In  priority  next  after  the  funeral  expenses,  expenses 
of  the  last  sickness,  the  charges  and  expenses  of  admin- 
istering upon  the  estate,  and  the  allowance  to  the  widow 
and  Infant  children  and  must  be  paid  before  other  claims 
against  the  estate  of  the  deceased  person.  En.  March  11, 
1872.     Am'd.  1873-4,  352;     1893,   97. 

Cal.  Rep.  CIt.     122,  4G3. 

Estates  of  deceased  persons,  payment  of  debts,  gener- 
ally:  Post,  sees.  1643  et  seq. 


§  1206.     Same,  In  cases  of  execution  or  attachment.    In 

cases  of  executions,  attachments,  and  writs  of  a  similar 
nature,  issued  against  any  person,  except  for  claims  for 
labor  done,  any  miners,  mechanics,  salesmen,  servants, 
clerks  and  laborers,  or  any  other  person  who  renders 
services  or  performs  work,  who  have  claims  against  the 
defendant  for  labor  done  or  work  performed,  may  give 
notice  Jf  their  claims,  and  the  amount  thereof,  sworn  to 
by  the  person  making  the  claim,  to  the  creditor  and  the 
officer  executing  either  of  such  writs,  at  any  time  before 
the  actual  sale  of  property  levied  on,  or,  in  the  event  of  a 


459  MENS    FOR    SALARIES.  S  1207 

levy  upon  money,  at  any  time  before  the  transfer  of  such 
money  under  execution;  and,  unless  such  claim  Is  dis- 
puted by  the  debtor  or  a  creditor,  such  officer  must  pay 
to  such  person,  out  of  the  proceeds  of  the  sale,  or  In  the 
event  of  a  levy  on  money,  out  of  such  money,  the  amount 
each  is  entitled  to  receive  for  services  rendered  within* 
the  sixty  days  next  preceding  the  levy  of  the  writ,  not  ex- 
ceeding one  hundred  dollars.  If  any  or  all  of  the  claims 
so  presented  and  claiming  preference  under  this  section 
are  disputed  by  either  the  debtor  or  a  creditor,  the  per- 
son presenting  the  same  must  commence  an  action  within 
ten  days  for  the  recovery  thereof,  and  must  prosecute  his 
action  with  due  diligence,  or  be  forever  barred  from  any 
claim  or  priority  of  payment  thereof;  and  the  officer 
shall  retain  possession  of  so  much  of  the  proceeds  of  the 
sale  or  money  as  may  be  necessary  to  satisfy  such  claim 
until  the  determination  of  such  action;  and  in  case  judg- 
ment be  had  for  the  claim,  or  any  part  thereof,  carrying 
costs,  the  costs  taxable  therein  shall  likewise  be  a  pre- 
ferred ci'alm  with  the  same  rank  as  the  original  claim. 
En.  March  11,  1872.     Am'd.  1873-4,  352;    1893,  87. 

Cal.  Rep.  CIt.     63,  382;    63,  383;    81,  271;     81,  273;     83, 


223 
149 
401 


83,    224;     115,   145;     115,   147;     115,   148;     115, 
122,    533;      128,   43;     128,   44;     141,   400;     141, 
141,  402. 


§  1207.  Dispute  of  claim  or  portion  thereof — Costs.  The 
debtor  or  creditor  intending  to  dispute  a  claim  presented 
under  the  provisions  of  the  last  section  shall,  within  ten 
days  after  receiving  notice  of  such  claim,  serve  upon  the 
claimant  and  the  officer  executing  the  writ  a  statement 
In  writing,  verified  by  the  oath  of  the  debtor  or  the  per- 
son disputing  such  claim,  setting  forth  that  no  part  of 
said  claim,  or  not  exceeding  a  sum  specified.  Is  Justly  due 
from  the  debtor  to  the  claimant  for  services  rendered 
within  the  sixty  days  next  preceding  the  levy  of  the  writ. 
If  the  claimant  bring  suit  on  a  claim  which  is  disputed  in 
part  only  and  fail  to  recover  a  sum  exceeding  that  which 
was  admitted  to  be  due,  he  shall  not  recover  costs,  but 
costs  shall  be  adjudged  against  him.     En.  Stats.  1883,  47. 

Cal.  Rep.  Cit.     83,  223;    115,  145;    128,  44. 


PART  III. 
TITLE  IV. 

CHAPTER  IV. 
[Chapter  added  March  21,  1905.    Stats.  1905,  632.] 

CERTAIN    LIENS    UPON    ANIMALS. 

§  1208.    Liens  arising  from  acts  done  In  preventing  cruelty  to  EinlmalS, 
how   enforced. 

g  1208.  Lien  upon  certain  animala.  Any  person  hav- 
ing a  lien  upon  anj'-  animal  or  animals  under  the  provi- 
Bions  of  sections  five  hundred  and  ninety-seven  a,  or  five 
hundred  nnl  ninety-seven  b,  of  the  Penal  Code  may  sat- 
isfy such  lien  as  follows:  If  such  lien  be  not  discharged 
and  satisfied,  by  the  person  responsible,  within  three  days 
after  the  obligation  becomes  due,  then  the  person  holding 
such  lien  may  resort  to  the  proper  court  to  satisfy  the 
claim;  or  he,  three  days  after  the  charges  against  such 
property  become  due,  may  sell  the  same,  or  such  undi- 
vided fraction  thereof  as  may  become  necessary,  to  defray 
the  amount  due  and  costs  of  sale,  by  giving  three  days' 
notice  of  the  sale  by  advertising  in  some  newspaper  pub- 
lished In  the  county,  or  city  and  county,  in  which  the  lien 
has  attached  to  the  property;  or.  If  there  Is  no  paper  pub- 
lished In  the  county,  then  by  posting  notices  of  the  sale 
In  three  of  the  most  public  places  in  the  town  or  township 
for  three  days  previous  to  the  sale.  Said  notices  shall 
contain  an  accurate  description  of  the  property  to  be  solA^ 
together  with  the  terms  of  sale,  which  must  be  for  cash, 
payable  on  the  consummation  of  the  sale.  The  proceeds 
of  the  sale  must  be  applied  to  the  discharge  of  the  lieu 
and  the  costs  of  sale;  the  remainder,  If  any,  must  be  paid 
over  to  the  owner,  If  known,  and  if  not  known  must  be 
paid  Into  the  treasury  of  the  humane  society  of  the  coun- 
ty, or  city  and  county,  wherein  the  sale  takes  place;  If  no 
humane  society  exists  In  the  county,  then  the  remainder 
?hall  be  paid  Into  the  county  treasury.  En.  Stats.  1905, 
632. 

This  Is  merely  a  codification  of  the  provisions  concerning  foreclosure  ot 
Hens  In  the  statutes  of  1873-*,  page  499,  and  1901,  page  285,  relating  to 
cruelty  to  animals,  the  penal  features  whereof  have  already  been  codi- 
fied Into  the  Penal  Code  and  the  civil  features  Into  the  Civil  Code.— 
Code  Commissioner's  Note. 

(ifiO) 


40.  CONTEMPra  i  ^^ 

TITLE    V. 

OF    CONTEMPra 

§  1209.    What   acts  or  omissions  are   contempts. 

5  1210.    Re-entry  on   property  after  eviction,    when  a  contempt. 

5  IZU.  A  contempt  committed  In  the  presence  of  the  court  may  bo 
punished  summarily.  When  not  so  committed,  an  affidavit 
or  statement   shall   be   made. 

5  1212.    A  warrant  of  attachment  may  Issue  or  a  notice  to  show  cause. 

§  1213.     Bail   may   be   given    by    a   person   arrested   urrder   such    warrant. 

S  1214.  Sheriff  must,  upon  executing  the  warrant,  arrest  and  detaJa 
the   person   until   discharged. 

S  1215.    Ball  bond,   form  and  conditions  of. 

5  1216.    Officer  must   return   warrant   and   undertaking,    If  any. 

§  1.17.     Hearing. 

I  1218.    Judgment   and   penalty,    if  guilty. 

5  1219.  If  the  contempt  is  the  omission  to  perform  any  act,  the  per- 
son  may    be    Imprisoned    until    performance. 

5  1220.     If  a  party  fall  to  appear,   proceedings. 

J  1221.  Illness  sufficient  cause  for  nonappearance  of  party  arrested. 
Confinement   imder   arrests    for   contempt. 

S  1222.    Jtrdgment   and   orders   In   such   cases  final. 

§  1209.  What  acts  op  omissions  are  contempts.  The 
following  acts  or  omissions  in  respect  to  a  court  of  jus- 
tice, or  proceedings  therein,  are  contempts  of  the  author- 
ity of  the  court: 

1.  Disorderly,  contemptuous,  or  insolent  behavior  to- 
ward the  judge  while  holding  the  court,  tending  to  inter- 
rupt the  due  course  of  a  trial  or  other  judicial  proceeding. 

2.  A  breach  of  the  peace,  boisterous  conduct  or  violent 
disturbance,  tending  to  interrupt  the  due  course  of  a  trial 
or  other  judicial  proceeding. 

3.  Misbehavior  in  oflBce,  or  other  willful  neglect  or  vio- 
lation ol  duty  by  an  attorney,  counsel,  clerk,  sheriff,  coro- 
ner, or  other  person,  appointed  or  elected  to  perform  a 
judicial   or  ministerial  service. 

4.  Deceit  or  abuse  of  the  process  or  proceedings  of  the 
court  by  a  party  to  an  action  or  special  proceeding. 

5.  Disobedience  of  any  lawful  judgment,  order  or  pro- 
cess of  court. 

6.  Assuming  to  be  an  oflBcer,  attorney,  counsel  of  a 
court,  and  acting  as  such,  without  authority. 

7.  Rescuing  any  person  or  property,  in  the  custody  of  an 
oflBcer,  by  virtue  of  an  order  or  process  of  such  court 

8.  Unlawfully  detaining  a  witness,  or  party  to  an  action, 
while  going  to,  remaining  at,  or  returning  from  the  court 
■where  the  action  is  on  the  calendar  for  trial. 

9.  Anj^  other  unlawful  interference  with  the  process 
or  proceedings  of  a  court. 

10.  Disobedience  of  a  subpoena  duly  served,  or  refusing 
to  be  sworn  or  answer  as  a  witness. 


I  1210  CONTEMPTS.  462 

11.  WTien  summoned  a.?  a  juror  in  a  court,  noglccting  to 
attend  or  serve  as  such,  or  improperly  conversing  with  a 
party  to  an  action,  to  be  tried  at  sucli  court,  or  witli  any 
other  person,  in  relation  to  the  merits  of  such  action, 
or  receiving  a  communication  from  a  party  or  other  person 
in  respect  to  it,  without  immediately  disclosing  the  same 
to  the  court. 

12.  Disobedience  by  an  inferior  tribunal,  magistrate,  or 
oflioer,  of  the  lawful  judgment,  order,  or  process  of  a 
superior  court,  or  proceeding  in  an  action  or  sporial  pro- 
cefxling  contrary  to  law,  after  such  action  or  special  pro- 
ceeding is  removed  from  the  jurisdiction  of  such  inferior 
tribunal,  magistrate,  or  officer.  Disobedience  of  the  lawful 
orders  or  process  of  a  judicial  officer  is  also  a  contempt 
of  the  authority  of  such  officer.  But  no  speech  or  publica- 
tion reflecting  upon  or  concerning  any  court  or  any  officer 
thereof  shall  be  treated  or  punished  as  a  contempt  of  such 
court,  unless  made  in  the  immediate  presence  of  such 
court  while  in  session,  and  in  such  a  manner  as  to  actually 
interfere  with  its  proceedings.  En.  March  11,  1872.  Am'd. 
1891.  6. 

Cal.  Rep.  Cit     47,  133;  53,  207;   64,  345;   64.  439;  65,  192; 

07,   C45;    69,   4;    G9.   17;    69,   543;    69,   585;    84,   55;    90, 

556;    94,  334;    99,  3C1;    119,  422;    140,  5;  140,  9;  140,  12; 

140,  14;  140,  15;  140,  16;  140,  215;  147,  101.     Subd.  3— 

64,  438;   64,  598.     Subd.  4—73,  241.     Subd.  5—90,  556; 

99.   529;    140,  4.     Subd.   6—64,  598.     Subd.  9—64,  438; 

69,  31;   85,  607;    99,  529;   140,  4.     Subd.  10—70,  53;   72, 

512;    140,  4. 
Prac.  Act,  sec.  480.     En.  April  29,  1851. 
Cal.  Rep.  Cit.     7,  182. 

Powers  of  courts:  Ante,  sees.  128,  177,  178. 
Juror  willfully  failing  to  attend:  Ante,  sec.  238. 
Dispossession  of   party  placed  in  possession  under  pro- 
cess:  Post,  sec.  1210. 

In  justices'  courts:   Ante,  sees.  906-910. 
Misbehavior  of  attorney:   Ante,  sees.  287  et  seq. 
Disobedience  of  lawful  judgment  or  order — By  executor: 
Post,  sec.  1440. 

Disobedience   of   citation   in    probate    court:    Post,   sees. 
1440,  1400,  1461. 
Disobedience  of  witness:  Post,  sees.  1991-1994. 
Disobedience  of  mandate:   Ante,  sec.  1097. 
Supervisors,  power  of  to  punish  for  contempt:   See  Pol. 
Code,  sec.  4047. 

§  1210.  Re-entry  on  property  after  eviction,  when  a 
contempt.    Every  person  dispossessed  or  rejected  from  or 


463  CONTEMPTS.  I  IZU 

out  of  any  real  property  by  the  judgment  or  process  of  any 
court  of  competent  jurisdiction,  a&d  who,  not  having  right 
so  to  do,  re-enters  into  or  upon  or  takes  possession  of  any 
such  real  property,  or  intiuces  or  procures  any  person  not 
having  right  so  to  do,  or  aids  or  abets  him  therein,  is  guilty 
of  a  contempt  of  the  court  by  which  such  judgment  was 
rendered  or  from  which  snoh  process  issued.  Upon  a  con- 
viction for  such  contempt  the  court  must  immediately  issue 
an  alias  process,  directed  to  the  proper  officer,  and  requir- 
ing him  to  restore  such  possession  to  the  party  entitled 
under  the  original  judgment  or  process  (or  to  his  lessor  or 
to  his  grantor).  And  no  appeal  from  the  order  directing 
the  issuance  of  an  alias  writ  of  possession  shall  stay  the 
execution  thereof,  unless  a  written  undertaking  be  executed 
on  the  part  of  the  appellant,  with  two  or  more  sureties, 
to  the  effect  that  he  will  not  commit  or  suffer  to  be  com- 
mitted any  waste  therein,  and  if  the  order  be  affirmed  or 
the  appeal  dismissed,  he  will  pay  the  value  of  the  use  and 
occupation  of  the  property  from  the  time  of  his  unlawful 
re-entry  until  the  delivery  of  the  possession  thereof,  pur- 
suant to  the  judgment  or  order,  not  exceeding  a  sum  to  be 
fixed  by  the  judge  of  the  court  by  which  the  order  for  the 
alias  writ  was  made,  and  which  must  be  specified  In  the 
undertaking.  En.  March  11,  1872,  Am'd.  1893,  281. 
Cal.  Rep.  Cit     52,  508;  62,  480;  69,  4;  70,  212;  135,  320. 

S  1211.  A  contempt  committed  In  the  presence  of  the 
court  may  b'^  punished  summarily.  When  not  so  com- 
mitted, an  affidavit  or  statement  shall  be  made.  When  a 
contempt  Is  committed  in  the  immediate  view  and  presence 
of  the  court,  or  judge  at  chambers,  It  may  be  punished  sum- 
marily; for  which  an  order  must  be  made,  reciting  the 
facts  as  occurring  in  such  immediate  view  and  presence, 
adjudging  that  the  person  proceeded  against  Is  thereby 
guilty  of  a  contempt,  and  that  he  be  punished  as  therein 
prescribed.  When  the  contempt  Is  not  committed  in  the 
immediate  view  and  presence  of  the  court,  or  Judge  at 
chambers,  an  affidavit  shall  be  presented  to  the  court  or 
judge,  of  the  facts  constituting  the  contempt  or  a  statement 
of  the  facts  by  the  referees  or  arbitrators,  or  other  judicial 
officer.     En.  March  11,  1872. 

Cal.  Rep.  Cit  60,  93;  71,  240;  73,  497;  77,  200;  77,  201; 
92,  480;  126,  245;  131,  284;  140,  2;  140,  217;  146,  133, 

Prac.  Act,  sec.  481.     En.  April  29,  185L 

Cal.  Rep.  Cit    7,  183;   42,  415. 


{{  1213-12H  C?ONTElIPTS.  464 

Contempt  away  from  court,  attachment:  Post.  sees.  1212 
et  seq. 
Reciting  the  facts:  Post,  sec.  1219. 

§  1212.  A  warrant  of  attachment  may  Issue  or  a  notice 
to  show  cause.  When  the  contempt  is  not  committed  in 
the  immediate  view  and  presence  of  the  court  or  judge,  a 
warrant  of  attachment  may  be  issued  to  bring  the  person 
charged  to  answer,  or,  without  a  previous  arrest,  a  warrant 
of  commitment  may  upon  notice  or  upon  an  order  to  show 
cause  be  gi-anted;  and  no  warrant  of  commitment  can  be 
Issued  without  such  previous  attachment  to  answer,  or 
Buch  notice  or  order  to  show  cause.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     59,  421;  60,  6;  65,  191;  73,  497;  126,  245. 

Prac.  Act,  see.  482.    En.  April  29,  1851, 

§  1213,  Bail  may  be  given  by  a  person  arrested  under 
such  warrant.  Whenever  a  warrant  of  attachment  Is  is- 
sued, pursuant  to  this  title,  the  court  or  judge  must  direct 
by  an  indorsement  on  such  warrant,  that  the  person 
charged  may  be  let  to  bail  for  his  appearance  in  an  amount 
to  be  specified  in  such  indorsement.     En.  March  11,  1872. 

Prac.  Act,  sec.  483.     En.  April  29,  1851.     Am'd.  1859,  140. 

§  1214.  Sheriff  must,  upon  executing  the  warrant,  ar- 
rest and  detain  the  person  until  discharged.  Upon  ex- 
ecuting the  warrant  of  attachment,  the  sheriff  must  keep 
the  person  in  custody,  bring  him  before  the  court  or  judge, 
and  detain  him  until  an  order  be  made  in  the  premises, 
unless  the  person  arrested  entitle  himself  to  be  discharged, 
as  provided  in  the  next  section.     En.  March  11,  1872. 

Prac.  Act,  sec.  484.    En.  April  29,  1851. 

§  1215.  Bail  bond,  form  and  conditions  of.  When  a  di- 
rection to  let  the  person  arrested  to  bail  is  contained  in 
the  warrant  of  attachment,  or  indorsed  thereon,  he  must 
be  discharged  from  the  arrest  upon  executing  and  deliv- 
ering to  the  officer,  at  any  time  before  the  return  day  of 
the  warrant,  a  written  undertaking,  with  two  sufficient 
sureties,  to  the  effect  that  the  person  arrested  will  appear 
on  the  return  of  the  warrant  and  abide  the  order  of  the 
court  or  judge  thereupon;  or  they  will  pay,  as  may  be  di- 
rected, the  sum  specified  in  the  warrant  En.  March  11, 
1872. 

Prac  Act,  sec.  485.     En.  April  29,  1851. 

§  1216.  Officer  must  return  v/arrant  and  undertaking,  If 
any.     The  officer  must  return  the  warrant  ot  arrest  and 


4K  CONTEMPTS.  §  1217-1220 

undertaking,  if  any,  received  by  him  froai  the  person  ar- 
rested, by  the  return  day  specified  therein.  En.  March  11, 
1872. 

Prac.  Act,  sec.   486.    En.   April   29,   1851. 

CaL   Rep.    Cit.    45,   7. 

§  1217.  Hearing.  When  the  person  arrested  has  been 
brought  up  or  appeared,  the  court  or  judge  must  proceed  to 
investigate  the  charge  and  must  hear  any  answer  which 
the  person  arrested  may  make  to  the  same,  and  may  ex- 
amine witnesses  for  or  against  him,  for  which  an  adjourn- 
ment may  be  had  from  time  to  time,  if  necessary.  En. 
March  11,  1872. 

Cal.  Rep.  Clt    60,  93;   69,  4;  73,  497;   119,  423. 

Prac.  Act,  sec.  487.    En.  April  29,  1851. 

§  1218.  Judgment  and  penalty,  if  guilty.  Upon  the 
answer  and  evidence  taken  the  court  or  judge  must  de- 
termine whether  the  person  proceeded  against  is  guilty  of 
the  contempt  charged,  and  If  it  be  adjudged  that  he  is 
guilty  of  the  contempt,  a  fine  may  be  imposed  on  him 
not  exceeding  five  hundred  dollars,  or  he  may  be  impri- 
soned not  exceeding  five  days,  or  both.  En.  March  11, 
1872. 

Cal.  Rep.  Cit  60,  93;  64,  438;  69,  3;  73,  497;  94,  334; 
119,  58;    122,  204. 

Prac.  Act,  sec.  488.     Ehi.  April  29,  1851. 

Cal.  Rep.  Cit    6,  321;   32,  88;   44,  478. 

§  1219.  If  the  contempt  is  the  omission  to  perform  any 
act,  the  person  may  be  Imprisoned  until  performance. 
When  the  contempt  consists  in  the  omission  to  perform  an 
act  which  is  yet  in  the  power  of  the  person  to  perform,  he 
may  be  imprisoned  until  he  have  performed  it,  and  in  that 
case  the  act  must  be  specified  in  the  warrant  of  commit- 
ment    En.  March  11,  1872. 

Cal.  Rep.  Cit  47,  133;  69,  3;  69,  4;  81,  67;  83,  462;  90, 
556;    119,   58;    122,   203;    122,   204;    140,   218. 

Prac.  Act  sec.  489.     En.  April  29,  185L 

Cal.  Rep.  Cit     6,  321;   7,  177;   44,  478. 

Executor  or  administrator,  contempt:  Post,  sec.  1440. 

§  1220,  If  a  party  fail  to  appear,  proceedings.  When 
the  warrant  of  arrest  has  been  returned  served,  if  the 
person  arrested  do  not  appear  on  the  return  day,  the  court 
or  judge  may  issue  another  warrant  of  arrest,  or  may  order 
the  undertaking  to  be  prosecuted  or  both.    If  the  under- 

Code    Civil    Proc,— 30. 


gS  1221-n27  VOLUNTARY   DISSOLUTION.  466 

taliing  be  prosecuted,  the  measure  of  damages  in  the  action 
is  the  extent  of  the  loss  or  injury  sustained  by  the  ag- 
giieved  party,  by  reason  of  the  misconduct  for  which  the 
warrant  was  issued,  and  the  costs  of  the  proceeding.  En. 
March  11,  1872. 

Prae.  Act,  sec.  491.     En.  April  29,  1851. 

§  1221.  Illness  sufiacient  cause  for  nonappearance  of 
party  arrested.  Confinenient  under  arrests  for  contempt. 
Whenever,  by  the  provisions  of  this  title,  an  officer  is  re- 
quired to  keep  a  person  arrested  on  a  warrant  of  attach- 
ment in  custody,  and  to  bring  him  before  a  court  or  judge, 
the  inability,  from  illness  or  otherwise,  of  the  person  to 
attend  is  sufficient  excuse  for  not  bringing  him  up;  and 
the  officer  must  not  confine  a  person  arrested  upon  the 
warrant  in  a  prison,  or  otherwise  restrain  him  of  personal 
liberty,  except  so  far  as  may  be  necessary  to  secure  his 
personal  attendance.     En.  March  11,  1872. 

Prac.  Act,  sec.  492.     En.  April  29,  1851. 

§  1222.     Judgment   and  orders   in  such   cases   final.     The 
judgment  and  orders  of   the  court  or  judge,   made  in  cases 
of  contempt,  are  final  and  conclusive.     En.  March  11,  1872. 
Cal.  Bop.  Cit.     52,  508;    62,  481;    65,  30;    65,  31;    69,  543; 
77,  201;    81,  66;    88,  624;    90,  554;    90,  556;    90,  558; 
99,  361;    118,  141. 
Prac.  Act,  sec.  493.     En.  April  29,  1851. 
Cal.  Kep.  Cit.     52,  508. 


TITLE    VI. 

OF  THH   VOLUNTAKY   DISSOLUTION   OF   CORPORATIONS. 

§  1;=*7.  How  dissolved. 

§  1'28.  Application,    what   to  contain. 

§  122$,  A-pplication,    how   signed   and   verified. 

§  1:^S0.  Filing  application  and  publicatlcni  at  notice. 

\  V3X.  Objections   may   be   filed. 

§  ITS?.  Hearing   of   application. 

•i  liSS.  Judgment-roll  azid  appeals, 

I  1231.  Application  by  savings  and  loan  society. 

§  1227.  How  dissolved.  A  corporation  may  be  dis- 
solved by  the  superior  court  of  the  county  where  its  prin- 
ecipal  place  of  business  is  situated,  upon  its  voluntary  ap- 
pl^Eziilon  for  that  purpose.  En,  M%rch  11,  1872.  Am'd. 
18r?-S,  108;  1880,  109. 

Cal.   Rep.   Cit     81,   386;    81,  337;    S4,   335. 

Voluntary  dissolution,  receiver:  Ante,   sec.   565. 

Involuntary  dissolution:  Ante,  sses.   &02  et  ssq. 


4«7  VOLUNTARY   DISSOLUTION.  J§  122S-1233 

§  1228.  Application,  wliat  to  contain.  The  application 
must  be  in  writing,  and  must  set  forth: 

1.  That  at  a  meeting  of  the  stockholders  or  members 
called  for  that  purpose,  the  dissolution  of  the  corporation 
was  resolved  upon  by  a  two-third  vote  of  all  the  stock- 
holders   or    members. 

.  2.  That  all  claims  and  demands  against  the  corporation 
have  been  satisfied  smd  discharged.    En.   March   11,   1272. 

§  1229.  Application,  hsw  signed  and  vsrified.  The  ap- 
plication must  be  signed  Ijy  a  majority  of  the  board  of 
trustees,  directors,  or  other  officers  having  the  manage- 
ment of  the  affairs  of  the  corporation,  and  must  be  vari- 
fied  In  the  same  manner  as  a  complaint  in  a  civil  action. 
Eru  March  11,  1872. 

OJ.   Rep.   Cit    47,  133. 

Verification:  Ante,  sec.  446. 

§  1230.  KiUng  application  and  publication  of  n«iiice.  If 
the  court  is  satisfied  that  the  application  is  in  conformity 
with  this  title,  the  judge  thereof  must  order  it  to  be  filed 
with  the  clerk,  and  that  the  clerk  give  not  less  than  thirty 
nor  more  than  fifty  days'  notice  of  the  application,  by 
publication  in  some  newspaper  published  in.  V^e  county; 
i^exd  if  tJiere  are  none  such,  then  by  advertisements  r<>sted 
up  in  three  of  the  principal  public  places  in  the  couuty. 
li,n.  March  11,  1872.     Am'd.  1877-8,   108;    1880,  109. 

§  1231.  Objections  may  be  filed.  At  any  time  before 
the  expiration  of  the  time  of  publication,  any  person  may 
file  his  objections  to  the  application.    En.  March  11,  1872. 

§  1232.  Hearing  of  application.  After  the  time  of  pub- 
lication has  expired,  the  court  may,  upon  five  days'  notice 
to  the  persons  who  have  filed  objections  or  without 
further  notice,  if  no  objections  have  been  filed,  proceed 
to  hear  and  determine  the  application,  and  if  all  the  state- 
ments therein  made  are  shown  to  be  true,  must  declare 
the  corporation  dissolved-  En.  March  11,  1872.  Am'd. 
1877-8,  108. 

Notices,  service,  etc.:  Ante,  sees.  1010  et  seq. 

§  1233.  Judgment-roll  and  appeals.  The  application, 
Bkotlces,  and  proof  of  publication,  objections  (if  there  be 
aay)  and  declaration  of  dissolution,  constitute  the  jiidg- 
ment-roll;  and  from  the  judgment  an  appeal  may  be  taken 
9a  from  other  judgments  of  the  superior  courts,  iin, 
March  11.  1872.    Am'd.  1377-8,  103;    1830,  109. 


J  X234  VOLUNTARY    DISSOLUTION.  4M 

Cal.  Eep.  Cit.     81,  386;    81,  387j    84,  365. 
Appeals  to  supreme  court:  Ante,  sees.  963-966. 

§  1234.     Application  by  savings  and  loan  society.     If  the 

applicant  be  a  savings  and  loan  association,  or  engaged  in 
the  business  of  receiving  money  on  deposit  and  there  be 
any  unclaimed  deposit  or  dividend  in  its  hands  belonging 
to  a  person  whose  whereabouts  arc  unknown  to  the  trus- 
tees, directors,  or  other  officers  presenting  the  application, 
and  the  application  shall  set  forth  the  name  of  the  person 
making  such  deposit  or  entitled  to  such  dividend,  the  time 
when  such  deposit  was  made  or  dividend  declared,  the  resi- 
dence, if  known,  of  such  person  at  the  time  of  such  deposit, 
the  amount  of  such  deposit  or  dividend,  and  the  fact 
that  the  whereabouts  of  such  person  are  known.  The 
same  facts  shall  be  stated  in  the  notice  of  the  application 
given  by  the  clerk.  If,  at  any  time  before  the  expiration 
of  the  time  of  publication,  any  person  shall  file  a  claim  to 
such  deposit  or  dividend,  the  court  shall,  at  the  hearing 
and  upon  five  days'  notice  to  him,  hear  and  determine  his 
claim,  and  if  such  claim  be  established,  order  such  money 
to  be  paid  to  him.  All  such  deposits  or  dividends  not  so 
claimed,  or  as  to  which  no  claim  shall  be  established, 
shall,  upon  order  of  the  court,  be  paid  into  the  state  treas- 
ury, accompanied  with  a  copy  of  the  order,  which  shall 
set  forth  the  facts  hereinbefore  required  to  be  stated  con- 
cerning such  deposits  or  dividends;  and,  upon  production 
of  the  treasurer's  receipt  for  such  payment,  the  court  may 
proceed  to  declare  the  corporation  dissolved  as  in  other 
cases.  All  unclaimed  deposits  and  dividends  so  paid  into 
the  state  treasury  shall  be  received,  invested,  accounted 
for,  and  paid  out,  in  the  same  manner  and  by  the  same 
officers  as  is  provided  by  law  in  the  case  of  escheated 
estates  and  in  section  twelve  hundred  and  seventy-two  of 
this  code.     En.  Stats.  1897,  33. 


469  EMINENT   DOMAIN.  SS  1237.  1238 

TITLE  VII. 

OF   EMINENT   DOMAIN. 

5  1237.  Eminent   domain  defined. 

§  1-38.  Purposes   for   which   it   may  be  exercised. 

§  1239.  Estates   subject  to  public  use. 

§  1240.  Private    property    defined.     Classes    enumerated. 

§  1241.  Facts  necessary  to  be   found  by  court  before   condemnation. 

§  1242.  Parties   may   make   location.     May   enter   to  make   surveys. 

§  1243.  Jurisdiction    In    superior    court. 

§  1244.  The  complaint   anvl   Its   contents. 

§  12*5.  Summons,    what   to   contain.    How   Issued   and   served. 

§  1246.  Who  may  defend. 

§  1247.  Court   shall    have   Jurisdiction    to    regulate    the    mode    of   making 

crossings   or   of   enjoying   a   common   use. 

§  1248.  Court   or  jury    to   assess  damages. 

§  1249.  The  date  with  respect  to  which  compensation  shall  be  assessed, 

and   the   measure   thereof. 

§  1250.  New   proceedings  to   cure   defective   title.  » 

§  125L  Payment   of   damages  or  deposit  of  bond   therefor. 

§  1252.  Damages,    to   whom  paM. 

§  1253.  Final     order    of    condemnation,     what    to    contain.    When    filed. 

title  vests. 

§  1254.  Putting   plaintiff   in   possession. 

§  1255.  Costs   may   be   allowerd,    apportionment   thereof. 

§  1256.  Rules  of  practice. 

§  1257.  New   trials  and    appeals. 

§  125S.  When  title  takes  effect,   and  construction  of. 

§  1259.  When   title   takes  effect. 

§  1260.  Construction. 

§  12C1.  Pending    proceedings   not   affected. 

§  1262.  Rules   of  practice. 

§  1263.  Exceptions. 

§  1264.  Preferencee    of   proceedings    over   other    civil    actions. 

Gen.  Cit.  to  Title— Cal.  Rep.  Cit.  64,  125;  67,  431;  68, 
63;    69,   301;    119,   165. 

§  1237.  Eminent  domain  defined.  Eminent  domain  is 
the  right  of  the  people  or  government  to  take  private 
property  for  public  use.  This  right  may  be  exercised  in 
the  manner  provided  in  this  title.     En.   March  11,   1872. 

Cal.  Rep.  Cit.  87,  231;  91,  245;  91,  247;  91,  248;  130, 
634;    138,  582;   145,  587. 

Constitutional  provisions:  See  Const,  Cal.,  art.  1,  sec. 
14;   art.  12,  sec.  8;   art.   15,   sec.  1. 

State  may  exercise  right  of:  Pol.  Code,  sec.  44. 

§  1238.  Purposes  for  which  it  may  be  exercised.  Sub- 
ject to  the  provisions  of  this  title,  the  right  of  eminent 
domain  may  be  exercised  in  behalf  of  the  following  public 
uses: 

1.  Fortifications,  magazines,  arsenals,  navy  yards,  navy 
and  army  stations,   lighthouses,   range  and   beacon   lights. 


5  123S  EMINENT    DOMAIN.  «T0 

coast  surveys,  and  all  other  public  uses  authorized  by  the 
government   of   the   United   Stiites. 

2.  Public  buildings  and  grounds  for  the  use  of  the  stain, 
and  all  other  public  uses  authorized  by  the  legislature  of 
the   state. 

3.  Public  buildings  and  grounds  for  the  use  of  any 
county,  incorporated  city,  or  city  and  county,  village,  town 
or  school  districts;  canals,  aqueducts,  reservoirs,  tun- 
nels, flumes,  ditches  or  pipes  for  the  conducting  or  stor- 
ing water  for  the  use  of  the  inhabitants  of  any  county, 
incorporated  city,  or  city  and  county,  village  or  town,  or 
for  the  draining  of  any  count5^  incorporated  city,  or  city 
and  county,  village  or  town;  raising  the  banks  of  streams, 
removing  obstructions  therefrom  and  widening  and  deep- 
ening or  straightening  their  channels,  roads,  streets  and 
alleys,  public  mooring  places  for  water  craft,  public 
parks,  including  parks  and  other  places  covered  by  water 
and  all  other  public  uses  for  the  benefit  of  any  county, 
incorporated  city,  or  city  and  county,  village  or  town,  or 
the  inhabitants  thereof,  which  may  be  authorized  by  the 
legislature;  but  the  mode  of  apportioning  and  collecting 
the  costs  of  such  improvements  shall  be  such  as  may  be 
provided  in  the  statutes  by  which  the  same  may  be  au- 
thorized. 

4.  Wharves,  docks,  piers,  chutes,  booms,  ferries,  bridges, 
toll-roads,  by-roads,  plank  and  turnpike  roads;  paths  and 
roads  either  on  the  surface,  elevated  or  depressed,  for  the 
use  of  bicycles,  tricycles,  motor-cycles  and  other  horseless 
vehicles,  steam,  electric  and  horse  railroads,  canals, 
ditches,  dams,  pondings,  flumes,  aqueducts,  and  pipes  for 
Irrigation,  public  transportation,  supplying  mines  and 
farming  neighborhoods  with  water,  and  draining  and  re- 
claiming lands,  and  for  floating  logs  and  lumber  on 
streams   not   navigable. 

5.  Roads,  tunnels,  ditches,  flumes,  pipes  and  dumping 
places  for  working  mines;  also  outlets,  natural  or  other- 
wise, for  the  flow,  deposit,  or  conduct  of  tailings  or  refuse 
matter  from  the  mines;  also  an  occupancy  in  common  by 
the  owners  or  possessors  of  different  mines  of  any  place, 
for  the  flow,  deposit  or  conduct  of  tailings  or  refuse  matter 
from  their  several  mines. 

6.  By-roads  leading  from  highways  to  residences,  farms, 
mines,  mills,  factories  and  buildings  for  operating  machin- 
ery, or  necessary  to  reach  any  property  used  for  public 
purposes. 

7.  Telegraph   and   telephone   lines. 


C.  C.  p.,  1906. 

§  1238.  Subject  to  the  provisions  of  this  title,  the  right 
of  emiuent  domain  may  be  exercised  in  behalf  of  the  fol- 
lowing public  uses: 

1.  ]''ortifications,  magazines,  arsenals,  navy  yards,  navy 
and  army  stations,  lighthouses,  range  and  beacon  lights, 
coast  surveys,  and  all  other  public  uses  authorized  by  the 
government  of  the  United  States. 

2.  Public  buildings  and  grounds  for  the  use  of  the  state, 
and  all  other  public  uses  authorized  by  the  legislature  of 
the  state. 

3.  Public  buildings  and  grounds  for  the  use  of  any  county, 
incorporated  city,  or  city  and  county,  village,  town  or  school 
districts;  canals,  aqueducts,  reservoirs,  tunnels,  flumes, 
ditches  or  pipes  for  conducting  or  storing  water  for  the  use 
of  the  inhabitants  of  any  county,  incorporated  city,  or  city 
and  county,  village  or  town,  or  for  draining  any  county, 
incorporated  city,  or  city  and  county,  village  or  town;  rais- 
ing the  banks  of  streams,  removing  obstructions  therefrom, 
and  widening  and  deepening  or  straightening  their  chan- 
nels, roads,  streets  and  alleys;  public  mooring  places  for 
water  craft,  public  parks,  including  parks  and  other  places 
covered  by  water,  and  all  other  public  uses  for  the  benefit 
of  any  county,  incorporated  city,  or  city  and  county,  village 
or  town,  or  the  inhabitants  thereof,  which  may  be  author- 
ized by  the  legislature;  but  the  mode  of  apportioning  and 
collecting  the  costs  of  such  improvements  shall  be  such  as 
may  be  provided  in  the  statutes  by  which  the  same  may 
be  authorized. 

4.  Wharves,  docks,  piers,  chutes,  booms,  ferries,  bridges, 
toll  roads,  byroads,  plank,  and  turnpike  roads;  paths  and 
roads  either  on  the  surface,  elevated,  or  depressed,  for  the 
uses  of  bicycles,  tricycles,  motorcycles  and  other  horseless 
vehicles,  steam,  electric,  and  horse  railroads,  canals,  ditches, 
dams,  pondings,  flumes,  aqueducts  and  pipes  for  irrigation, 
public  transportation,  supplying  mines  and  farming  neigh- 
borhoods with  water,  and  draining  and  reclaiming  lands, 
and  for  floating  logs  and  lumber  on  streams  not  navigable. 

5.  Eoads,  tunnels,  ditches,  flumes,  pipes  and  dumping 
places  for  working  mines;  also  outlets,  natural  or  otherwise, 
for  the  flow,  deposit,  or  conduct  of  tailings  or  refuse  matter 
from  mines;  also  an  occupancy  in  common  by  the  owners 
or  possessors  of  different  mines  of  any  place  for  the  flow, 
deposit,  or  conduct  of  tailings  or  refuse  matter  from  their 
several  mines. 

6.  By-roads  leading  from  highways  to  residences,  farms, 
mines,  mills,  factories  and  buildings  for  operating  machin- 
ery, or  necessary  to  reach  any  property  used  for  public 
purposes. 


7.  Telegraph  and  telephone  lines. 

8.  Sewerage  of  any  incorporated  city,  city  and  county,  or 
of  any  village  or  town,  whether  incorporated  or  unincor- 
porated, or  of  any  settlement  consisting  of  not  less  than 
ten  families,  or  of  any  public  buildings  belonging  to  the 
state,  or  to  any  college  or  university. 

9.  Roads  for  transportation  by  traction  engines  or  road 
locomotives. 

10.  Oil  pipelines. 

11.  Roads  and  flumes  for  logging  or  lumbering  purposes. 

12.  Canals,  reservoirs,  dams,  ditches,  flumes,  aqueducts 
and  pipes  for  supplying  and  storing  water  for  the  operation 
of  machinery  for  the  purpose  of  generating  and  transmitting 
electricity  for  tlie  supply  of  mines,  quarries,  railroads,  tram- 
ways, mills,  and  factories  with  electric  power;  and  also  for 
the  supplying  of  electricity  to  light  or  heat  mines,  quarries, 
mills,  factories,  incorporated  cities  and  counties,  villages  or 
towns;  and  also  for  furnishing  electricity  for  lighting,  heat- 
ing or  power  purposes  to  individuals  or  corporations,  to- 
gether with  lands,  buildings  and  all  other  improvements  in 
or  upon  which  to  erect,  install,  place,  use  or  operate  ma- 
chinery for  the.  purpose  of  generating  and  transmitting  elec- 
tricity for  any  of  tlie  purposes  or  uses  above  set  forth. 

13.  Electric  power  lines,  electric  heat  lines;  and  electric 
light,  heat  and  power  lines. 

14..  Cemeteries  for  the  burial  of  the  dead,  and  enlarging 
and  adding  to  the  same  and  the  grounds  thereof. 

15.  The  plants,  or  any  part  thereof  or  any  record  therein, 
of  all  persons,  firms  or  corporations  heretofore,  now  or 
hereafter  engaged  in  the  business  of  searching  public  rec- 
ords, or  pviblishing  public  records  or  insuring  or  guarantee- 
ing titles  to  real  property,  including  all  copies  of,  and  all 
abstracts  or  memoranda  taken  from,  public  records,  which 
are  owned  by  or  in  the  possession  of  such  persons,  firms  or 
corporations,  or  which  are  used  by  them  in  their  respective 
businesses;  provided,  however,  that  the  right  of  eminent 
domain  in  behalf  of  the  public  uses  mentioned  in  this  sub- 
division may  be  exercised  only  for.  the  purpose  of  restoring 
or  replacing,  in  whole  or  in  part,  public  records,  or  the 
substance  of  public  records,  of  any  city,  city  and  county, 
county  or  other  municipality,  which  records  have  been,  or 
may  hereafter  be,  lost  or  destroyed  by  conflagration  or 
other  public  calamity;  and  provided  further,  that  such  right 
shall  be  exercised  only  by  the  city,  city  and  county,  county 
or  municipality,  whose  records,  or  part  of  whose  records, 
have  been,  or  may  be,  so  lost  or  destroyed.  [In  effect  June 
1 1,  1906.] 


471  EMINENT    DOMAIN.  i  1239 

8.  Sewerage  of  any  incorporated  city,  city  and  county, 
or  of  any  village  or  town,  whether  incorporated  or  unin- 
corporated, or  of  any  settlement  consisting  of  not  less  than 
ten  families,  or  of  any  public  buildings  belonging  to  the 
state,  or  to  any  college  or  university. 

9.  Roads  for  transportation  by  traction  engines  or  road 
locomotives. 

10.  Oil  pipe-lines. 

11.  Roads  and  flumes  for  logging  or  lumbering  purposes. 

12.  Canals,  reservoirs,  dams,  ditches,  flumes,  aqueducts 
and  pipes  for  supplying  and  storing  water  for  the  opera- 
tion of  machinery  for  the  purpose  of  generating  and  trans- 
mitting electricity  for  the  supply  of  mines,  cars,  railroads, 
tramways,  mills,  and  factories  with  electric  power;  and  also 
for  the  supplying  of  electricity  to  light  or  heat  mines,  cars, 
mills,  factories,  incorporated  cities  and  counties,  villages 
or  towns;  and  also  for  furnishing  electricity  for  lighting, 
heating  or  power  purposes  to  individuals  or  corporations, 
together  with  lands,  buildings  and  all  other  Improvements 
in  or  upon  which  to  erect,  install,  place,  use  or  operate  ma- 
chinery for  the  purpose  of  generating  and  transmitting 
electricity  for  any  of  the  purposes  or  uses  above  set  forth. 

13.  Electric  power  lines,  electric  heat  lines;  and  electric 
light,  heat  and  power  lines. 

14.  Cemeteries  for  the  burial  of  the  dead,  and  enlarging 
and  adding  to  the  same  and  the  grounds  thereof.  En. 
March  11,  1872.  Am'd.  1873-4,  353;  1891,  48;  1893,  146; 
1895,  89;    1897,  70;   1900-01,  72;    1905,   637. 

Cal.  Rep.  Cit.     51,  271;   51,  272;   65,  390;   69,  302;   79,  165; 

87,  232;   91,  255;    143,  570.     Subd.  3—62,  182;    62,  183; 

67,  660;   92,  531;   95,  111;    95.  112;    98,   622;    119,  165; 

132,  237.     Subd.  4—53,  227;    56,  596;   76,  370;   79,  161; 

79,  550;   97,  679;   111,  227;    134,  414;    136,  49;    144,  214. 

Subd.  5—51,  271;  51,  272;  63,  73;  73.  484;  73,  485;  108, 

90.     Subd.  8—91.  248;   91,  253. 
Eminent  domain,  generally:   See  Civ.   Code,  sec.  1001. 
Condemnation  of  state  land  for  governmental  purposes: 
rol.  Code,  sees.  33.  34. 
Road    purposes:  Pol.    Code,    sec.    2690. 
Toll-roads:   Pol.   Code,   sec.   2787. 
Toll-bridge  or  ferry:  Pol.  Code,  sec.  2855. 
Wharves,  chutes,  and  piers:  Pol.  Code,  sec.  2913. 
Reclamation  purposes;    Pol.   Code,  sec.  3471. 
Streets  or  alleys:   Pol.  Code.  sec.  4372. 
§  1239.     Estates  subject  to  public  use.     The  following  Is 
n  classification  of  the  estates  and  rights  In  lands  subject 
to  be  taken  for  public  use: 


{  1240  ETMINENT   DOMAIN.  472 

1.  A  fee  simple,  when  taken  for  public  buildings  or 
grounds,  or  for  permanent  buildings,  for  reservoirs  and 
dams,  and  permanent  flooding  occasioned  thereby,  or  for 
an  outlet  for  a  flow,  or  a  place  for  the  deposit  of  debris 
or  tailings  of  a  mine. 

2.  An  easement,  when  taken  for  any  other  use. 

3.  The  right  of  entry  upon  and  occupation  of  lands,  and 
the  right  to  tiake  therefrom  such  earth,  gravel,  stones, 
trees,  and  timber  as  may  be  necessary  for  some  public 
use.     En.  March  11,  1872.     Am'd.   1873-4,   355. 

Cal.    Rep.    Cit.     5G,   10;     G2,   183;     62,   184;     G7,   60;     67. 
660;   92,  531;    124,  616.     Subd.  3—111,  229. 

§  1240.     Private   property   defined.     Classes   enumerated. 

The  private  property  which  may  be  taken  under  this  title 
Includes; 

1.  All  real  property  belonging  to  any  person; 

2.  Lands  belonging  to  this  state,  including  tide  and 
submerged  lands,  not  within  the  corporate  limits  of  any 
city,  or  city  and  county,  or  to  any  county,  incorporated 
city,  or  city  and  county,  village  or  town,  not  appropriated 
to  some  public  use; 

3.  Property  appropriated  to  public  use;  but  such  prop- 
erty shall  not  be  taken  unless  for  a  more  necessary  pub- 
lic use  than  that  to  which  it  has  been  already  appropri- 
ated. 

4.  Franchises  for  toll  roads,  toll  bridges,  and  ferries, 
and  all  other  franchises,  but  such  franchises  shall  not  be 
taken  unless  for  free  highways,  railroads,  or  other  more 
necessary  public  use; 

5.  All  rights  of  way  for  any  and  all  the  purposes  men- 
tioned In  section  twelve  hundred  and  thirty-eight,  and  any 
and  all  structures  and  Improvements  thereon,  and  the 
lands  held  or  used  in  connection  therew^ith  shall  be  sub- 
ject to  be  connected  with,  crossed,  or  intersected  by  any 
other  right  of  way  or  improvements,  or  structures  there- 
on. They  shall  also  be  subject  to  a  limited  use.  In  com- 
mon with  the  owner  thereof,  when  necessary;  but  such 
uses,  crossings.  Intersections  and  connections  shall  be 
made  in  manner  most  compatible  with  the  greatest  pub- 
lic benefit  and  least  private  injury. 

No  railroad  main  track  crossing,  outside  the  limits  of 
any  incorporated  town,  city  or  city  and  county,  shall  be 
at  grade,  unless  the  party  proposing  such  crossing  at 
grade  shall,  at  its  own  sole  cost  and  expense,  protect 
such  crossing  by  the  construction,  operation  and  mainte- 
nance of  an  interlocking  plant,  with  suitable  signals  and 


473  EMINENT   DOMAIN.  I  12« 

derails;  but  either  party  to  such  crossing  may  insist  upon 
a  separation  of  grades,  in  which  case  the  cost  of  con- 
structing such  creasing  witli  separate  grades  shall  be 
equally  divided  between  the  railroad  companies  con- 
cerned; and  provided  further  that  where  any  such  cross- 
ing has  been  constructed  at  grade,  either  company  may, 
at  any  time  thereafter,  require  a  separation  of  the  grades 
at  such  crossing,  each  company  paying  one-half  of  the 
expense  of  such  separation;  and  provided  further  that  the 
foregoing  provisions  shall  not  be  construed  as  requiring 
a  separation  of  grades  where  such  separation  is  physi- 
cally impracticable,  and  in  case  of  any  dispute  or  con- 
troversy as  to  the  physical  practicability  of  any  under- 
grade or  overhead  crossing,  the  same  shall  be  determined 
by  the  superior  court  of  the  county  in  which  such  cross- 
ing is  situate  in  an  action  or  proceeding  brought  by 
either  party  for  that  purpose. 

6.  All  classes  of  private  property  not  enumerated  may 
be  taken  for  public  use,  when  such  taking  is  authorized  by 
law; 

7.  Proceedings  to  condemn  lands  belonging  to  this 
state  are  hereby  authorized,  and  must  be  maintained  and 
conducted  in  the  same  manner  as  are  other  condemnation 
proceedings  provided  for  in  this  title;  except,  that  in 
such  proceedings  the  sumnions  and  a  copy  of  the  complaint 
must  be  served  on  the  governor,  attorney-general  and  sur- 
veyor general  of  this  state.  En.  March  11,  1872.  Am'd. 
1900-01,  307;   1905,   126. 

Cal.    Eep.    Cit.     62,    183;    111,    230.     Subd.    1—14.5,    587; 

145,    588.     Subd.    2.— 145,    587;    145,    588.     Subd.    3— 

111,  227;  145,  587;    145,  588. 
More  necessary  public  use:  Post,  sec.  1241,  subd.  3. 
Crossings:  Post,  sec.  1247,  subd.  1. 

§  1241.  Facts  necessary  to  be  found  by  court  before 
condemnation.  Before  property  can  be  taken,  it  must  ap- 
pear: 

1.  That  the  use  to  which  it  is  to  be  applied  is  a  use 
authorized  by  law; 

2.  That  the  taking  is  necessary  to  such  use; 

3.  If  already  appropriated  to  some  public  use,  that  the 
public  use  to  which  it  is  to  be  applied  is  a  more  necessary 
public  use.     En.  March  11,  1872. 

Cal.  Eep.  Cit.     50,  506;    64,  131;    67,  62;    68,  63;    71,  480; 
79,  161;    91,  253.     Subd.  3—91,  256. 


{S   1242,  1244  EMINENT    DOMAIN.  474 

§  1242.  Parties  may  make  location.  iVIay  enter  to  make 
surveys.  In  all  cases  where  land  Is  required  for  public 
use,  the  state,  or  its  agents  in  charge  of  such  use,  may 
survey  and  locate  the  same;  but  it  must  be  located  in  the 
manner  which  will  he  most  compatible,  with  the  greatest 
public  good  and  the  least  private  injury,  and  subject  to 
the  provisions  of  section  twelve  hundred  and  forty-seven. 
The  state,  or  its  agents  in  charge  of  such  public  use,  may 
enter  upon  the  land  and  make  examination,  surveys  and 
maps  thereof,  and  such  entry  shall  constitute  no  cause 
of  action  in  favor  of  the  owners  of  the  land,  except  for 
injuries  resulting  from  negligence,  wantonness,  or  malice. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.  76,  412;  76,  413;  91,  255;  122,  603;  129, 
11;    133,  399. 

State  or  its  agents:  Civ.  Code,  sec.  1001. 

§  1243.  Jurisdiction  In  superior  court.  All  proceedings 
under  this  title  must  be  brought  in  the  superior  court  of 
the  county  in  which  the  property  is  situated.  They  must 
be  commenced  by  filing  a  complaint  and  issuing  a  sum- 
mons thereon.     En.  March  11,  1872.     Am'd.  1880,  118. 

Cal.  Rep.  Cit.  G5,  395;  65,  410;  74,  203;  76,  410;  83, 
496;  83,  497;  87.  231;  106,  205;  124,  647;  134,  589; 
138.  580;    138,  582. 

Complaint:   Post,  sec.  1244;   generally:   Ante,  sec.  426. 

Summons:  Post,  sec.  1245;  generally:  Ante,  sees.  406 
et  seq. 

§  1244.  The  complaint  and  its  contents.  The  complaint 
must  contain: 

1.  The  name  of  the  corporation,  association,  commis- 
sion, or  person  in  charge  of  the  public  use  for  which  the 
property  is  sought,  who  must  be  styled  plaintiff. 

2.  The  names  of  all  owners  and  claimants  of  the  prop- 
erty, if  known,  or  a  statement  that  they  are  unknown, 
■who  must  be  styled  defendants. 

3.  A  statement  of  the  right  of  the  plaintiff. 

4.  If  a  right  of  way  be  sought,  the  complaint  must  show 
the  location,  general  route,  and  termini,  and  must  be 
accompanied  with  a  map  ther&of,  so  far  as  the  same  is 
involved  in  the  action  or  proceeding. 

5.  A  description  of  each  piece  of  land  sought  to  be 
taken,  and  whether  the  same  includes  the  whole  or  only 
a  part  of  an  entire  parcel  or  tract.  All  parcels  lying  in 
the  county,  and  required  for  the  same  public  use,  may  be 
included  in  the  same  or  separate  proceedings,  at  the  op- 


475  EMINENT    DOIkLVm.  SS  1245-124^ 

tion  of  the  plaintiff,  but  the  court  may  consolidate  or 
separate  them  to  suit  the  convenience  of  parties. 

When  application  for  the  condemnation  of  a  right  of 
way  for  the  purposes  of  sewerage  is  made  on  behalf  of  a 
settlement,  or  of  an  incorporated  village  or  town,  the 
board  of  supervisors  of  the  county  may  be  named  as 
plaintiff.  En.  March  11,  1872.  Am'd.  1873-4,  355;  1880, 
118. 

Cal.  Rep.  Cit.  67,  60;  67,  61;  67,  64;  83,  510;  87,  233; 
124,  609;  132,  236;  134,  416.  Subd.  4—91,  252; 
122,  602;    134,  414.     Subd.  5—76,  413;     122,  602. 

§  1245.  Summons,  what  to  contain.  How  issued  and 
served.  The  clerk  must  issue  a  summons,  which  must  con- 
tain the  names  of  the  parties,  a  general  description  of  the 
whole  property,  a  statement  of  the  public  use  for  which 
it  is  sought,  and  a  reference  to  the  complaint  for  descrip- 
tions of  the  respective  parcels,  and  a  notice  to  the  de- 
fendants to  appear  and  show  cause  why  the  property  de- 
scribed should  not  be  condemned  as  prayed  for  in  the 
complaint.  In  all  other  particulars  it  must  be  in  the  form 
of  a  summons  in  civil  actions,  and  must  be  served  in 
like  manner.     En.  March  11,  1872. 

Summons  generally,  contents:  Ante,  sees.  407  et  seq.; 
service:  Ante,  sees.  410  et  seq. 

§  1246.  Who  may  defend.  All  persons  in  occupation  of, 
or  having  or  claiming  an  interest  in,  any  of  fhe  property 
described  in  the  complaint,  or  in  the  damages  for  the  tak- 
ing thereof,  though  not  named,  may  appear,  plead,  and 
defend,  each  in  respect  to  his  own  property  or  interest, 
or  that  claimed  by  him,  in  like  manner  as  if  named  in  the 
complaint.     En.  March   11,  1872. 

Cal.  Rep.  Cit.     87,  255;     124,  609. 

Appearance,  generally:   Ante,  sec.  1014. 

Answer,  counterclaim,  and  cross-complaint:  Ante,  sees. 
437-442. 

§  1247.  Court  shall  have  jurisdiction  to  regulate  the 
mode  of  making  crossings  or  of  enjoying  a  common   use. 

The  court  shall  have  power: 

1.  To  regulate  and  determine  the  place  and  manner  of 
making  connections  and  crossings,  or  of  enjoying  the 
common  use  mentioned  in  the  fifth  subdivision  of  section 
twelve  hundred  and  forty; 

2.  To  hear  and    determine    all    adverse    or    conflicting 


(  1248  EMINENT    DOMAIN.  4/!t 

claims  to  the  property  sought  to  be  condemned,  and  to 
the  damages  therefor; 

3.  To  determine  the  respective  rights  of  different  par- 
ties seeking  condemnation  of  the  same  property.  En. 
March  11,  1872. 

Cal.   Rep.  Cit     76,  412;    124,   G09;    124,  613. 

§  1248.  Court  or  jury  to  assess  damages.  The  coirrt, 
jvry,  or  referee  must  hear  such  le^ral  testimony  as  may 
be  offered  by  any  of  the  parties  to  the  proceedings,  and 
thereupon  must  ascertain  and  assess: 

1.  The  value  of  the  property  sought  to  be  condemned, 
and  all  improvements  thereon  pertaining  to  the  realty, 
and  of  each  and  every  separate  estate  or  interest  therein; 
if  it  consists  of  different  parcels,  the  value  of  each  parcel 
and  each  estate  or  interest  therein  shall  be  separately  as- 
sessed. 

2.  If  the  property  sought  to  be  condemned  constitutes 
only  a  part  of  a  larger  parcel,  the  damages  which  will 
accrue  to  the  portion  not  sought  to  be  condemned,  by  rea- 
son of  its  severance  from  the  portion  sought  to  be  con- 
demned, and  the  construction  of  the  improvement  in  the 
manner  proposed  by  the  plaintiff. 

3.  Separately,  how  much  the  portion  not  sought  to  be 
condemned,  and  each  estate  or  interest  therein,  will  be 
benefited;  if  at  all,  by  the  construction  of  the  improvement 
proposed  by  the  plaintiff;  and  if  the  benefit  shall  be  equal 
to  the  damages  assessed  under  subdivision  two,  the  owner 
of  the  parcel  shall  be  allowed  no  compensation  except  the 
value  of  the  portion  taken;  but  if  the  benefit  shall  be  less 
than  the  damages,  so  assessed,  the  former  shall  be  deducted 
from  the  latter,  and  the  remainder  shall  be  the  only  dam- 
ages allowed  in  addition  to  the  value. 

4.  If  the  property  sought  to  be  condemned  be  water 
or  the  use  of  water,  belonging  to  riparian  owners,  or  ap- 
purtenant to  any  lands,  how  much  the  lands  of  the  riparian 
owner,  or  the  lands  to  which  the  property  sought  to  be 
condemned  is  appurtenant,  will  be  benefited,  if  at  all,  by  a 
diversion  of  water  from  its  natural  course,  by  the  con- 
struction and  maintenance,  by  the  person  or  corporation 
in  whose  favor  the  right  of  eminent  domain  is  exercised, 
of  works  for  the  distribution  and  convenient  delivery  of 
water  upon  said  lands;  and  such  benefit,  if  any,  shall  be 
deducted  from  any  damages  awarded  the  owner  of  such 
property. 


tn  EMINENT   DOMAIN.  §§  1249-1251 

5.  If  the  property  sought  to  be  condemned  be  for  a  rail- 
road, the  cost  of  good  and  sufficient  fences  along  the  line 
of  such  railroad,  and  the  cost  of  cattle-guards  where  fences 
may  cross  the  line  of  such  railroad. 

6.  As  far  as  practicable,  compensation  must  be  assessed 
for  each  source  of  damages  separately.  En.  March  11,  1872. 
Am'd.   1889,  343. 

Cal.  Rep.  Cit.  56,  9;  64,  111;  67,  64;  68,  63;  69,  206;  79, 
551;  83,  514;  91,  452;  104,  27;  104,  28;  134,  415;  137, 
622.  Subd.  2—79,  550.  Subd.  3—79,  550.  Subd.  4— 
64,  113.     Subd.  5.-64,  112. 

Judgment  of  condemnation:  Post,  sec.  1253. 
Practice,  etc.:  Ante,  sec.  1246;  post,  sees.  1256,  1257. 
Jury:   Sec.  1256,  infra. 
Value,  etc.:    Post,  sec.  1249. 

§  1249.  The  date  with  respect  to  which  compensation 
shall  be  assessed,  and  the  measure  thereof.  For  the  pur- 
pose of  assessing  compensation  and  damages,  the  right 
thereto  shall  be  deemed  to  have  accrued  at  the  date  of  the 
summons,  and  its  actual  value,  at  that  date,  shall  be  the 
measure  of  compensation  for  all  property  to  be  actually 
taken,  and  the  basis  of  damages  to  property  not  actually 
taken  but  injuriously  affected,  in  all  cases'  where  such 
damages  are  allowed  as  provided  in  section  twelve  hun- 
dred and  forty-eight.  If  an  order  be  made  letting  the 
plaintiff  into  possession,  as  provided  in  section  twelve 
hundred  and  fifty-four,  the  compensation  and  damages 
awarded  shall  draw  lawful  interest  from  the  date  of  such 
order.  No  improvements  put  upon  the  property,  subse- 
quent to  the  date  of  the  service  of  summons  shall  be  in- 
cluded in  the  assessment  of  compensation  or  damages. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.  61,  91;  68,  65;  74,  262;  83,  568;  124,  643; 
124,  644;    124,  648. 

§  1250.     New  proceedings  to  cure  defective  title.     If  the 

title  attempted  to  be  acquired  is  found  to  be  defective 
from  any  caiise,  the  plaintiff  may  again  institute  proceed- 
ings to  acquire  the  same,  as  in  this  title  prescribed.  En. 
March  11,  1872. 

§  1251,  Payment  of  damages  or  deposit  of  bond  there- 
for.    The  plaintiff  must,  within  thirty  days  after  final  judg- 


§§  1252-1254  EMINENT    DOM.UN.  478 

ment,  pay  the  sum  of  mouey  assessed:  but  may,  at  the 
time  of  or  before  payment,  elect  to  build  the  fences  and 
cattle-guards;  and  if  ho  so  elect,  shall  execute  to  the  •de- 
fendant a  bond,  with  aureties  to  be  approved  by  the  court 
in  double  the  assessed  cost  of  the  same,  to  build  such 
fences  and  cattlc-'guards  within  eighteen  months  from  the 
time  the  railroad  Is  built  on  the  land  taken,  and  if  such 
bon'd  be  given,  need  not  pay  the  cost  of  such  fences  and 
cattle-gi.iards.  in  an  action  on  such  bond,  the  plaintiff  may 
recover  reasonable  attorney's  fees.  En.  March  11,  1S72. 
Cal.  Rep.  Cit.     64,  112;    G4.  113;    C5,  294;    67,  63;    104,  27; 

129,   4t)7;    129,    408;    133,    7;    134,    416;    139,    132;    139, 

138. 

§  1252.  Damages,  to  whom  paid.  Payment  may  be 
made  to  the  defendants  entitled  thereto,  or  the  money  may 
be  deposited  in  court  for  the  defendants,  and  be  distributed 
to  those  entitled  thereto.  If  the  money  be  not  so  paid  or 
deposited,  the  defendants  may  have  execution  as  in  civil 
cases;  and  if  the  money  cannot  be  made  on  execution,  the 
oourt,  upon  a  showing  to  that  effect,  must  set  aside  and 
annul  the  entire  proceedings,  and  restore  possession  of 
the  property  to  the  defendant,  if  possession  has  been 
taken  by  the  plaintiff.    En.  March  11,  1872. 

Cal.   Rep.   Cit.     64,  112;    67,  03;    78,  81;    78,  82;    129,  407; 

133,  7;  139,  133. 

Payment,  when  to  be  made:  Ante,  sec.  1251;  post,  sec 
1254. 

§  1263.  Final  order  of  condemnation,  what  to  contain. 
When  filed,  title  vests.  When  payments  have  been  made, 
and  the  bond  given,  if  the  plaintiff  elects  to  give  one, 
as  required  by  the  last  two  sections,  the  court  must  make 
a  final  order  of  condemnation,  which  must  describe  the 
property  condemned,  and  the  purposes  of  such  condemna- 
tion. A  copy  of  the  order  must  be  filed  in  the  office  of  the 
recorder  of  the  county,  and  thereupon  the  property  de- 
scribed therein  shall  vest  in  the  plaintiff  for  the  purposes 
therein  specified.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     64,  112;    67,  62;   78,  369;   132,  341;   133,  7; 

134,  416;   141,  50. 

§  1254.  Putting  plaintiff  in  possession.  At  any  time 
after  trial  and  judgment  entered  or  pending  an  appeal  from 
the  judgment  to  the  supreme  court,  whenever  the  plaintiff 


m  EMINENT    DOMAIN.  5  vz5i 

shall  have  paid  into  court,  for  the  defendant,  the  full 
amount  of  the  judgment,  and  such  further  sum  as  may  be 
required  by  the  court  as  a  fund  to  pay  any  further  damages 
and  costs  that  may  be  recovered  in  said  proceeding,  as  well 
as  all  damages  that  may  be  sustained  by  the  defendant,  if, 
for  any  cause,  the  property  shall  not  be  finally  taken  for 
public  use,  the  superior  court  in  which  the  proceeding  was 
tried  may,  upon  notice  of  not  less  than  ten  days,  authorize 
the  plaintiff,  if  already  in  possession,  to  continue  therein, 
and  if  not,  then  to  take  possession  of  and  use  the  property 
during  the  pendency  of  and  until  the  final  conclusion  of  the 
litigation,  and  may,  if  necessary,  stay  all  actions  and 
proceedings  against  the  plaintiff  on  account  thereof.  The 
defendant,  who  is  entitled  to  the  money  paid  into  court  for 
him  upon  any  judgment,  shall  be  entitled  to  demand  and 
receive  the  same  at  any  time  thereafter  upon  obtaining  an 
order  therefor  from  the  court.  It  shall  be  the  duty  of 
the  cx)urt,  or  a  judge  thereof,  upon  application  being  made 
by  such  defendant,  to  order  and  direct  that  the  money  so 
paid  into  court  for  him  be  delivered  to  him  upon  his  filing; 
a  satisfaction  of  the  judgment,  or  upon  his  filing  a  receipt 
therefor,  and  an  abandonment  of  all  defenses  to  the  action 
or  proceeding,  except  as  to  the  amount  of  damages  that 
he  may  be  entitled  to  in  the  event  that  a  new  trial  shall  be 
granted.  A  payment  to  a  defendant,  as  aforesaid,  shall  be 
held  to  be  an  abandonment  by  such  defendant  of  all  de- 
fenses interposed  by  him,  excepting  his  claim  for  greater 
compensation.  In  ascertaining  the  amount  to  be  paid  into 
court,  the  court  shall  take  care  that  the  sajne  be  suf- 
ficient and  adequate.  The  payment  of  the  money  into 
court,  as  hereinbefore  provided  for.  shall  not  discharge 
the  plaintiff  from  liability  to  keep  the  said  fund  full  and 
without  diminution;  but  such  money  shall  be  and  remain, 
as  to  all  accidents,  defalcations,  or  other  contingencies  (as 
between  the  parties  to  the  proceedings),  at  the  risk  of  the 
plaintiff,  and  shall  so  remain  until  the  amount  of  the  com- 
pensation or  damages  is  finally  settled  by  judicial  deter- 
mination, and  until  the  court  awards  the  money,  or  such 
]>art  thereof  as  shall  be  determined  upon,  to  the  defendant, 
and  until  he  is  authorized  or  required  by  rule  of  court  to 
take  it  If,  for  any  reason,  the  money  shall  at  any  time  be 
lost,  or  otherwise  abstracted  or  withdrawn,  through  no 
fault  of  the  defendant,  the  court  shall  require  the  plaintiff 
to  make  and  keep  the  sum  good  at  all  times  until  the  liti- 
gation is  finally  brought  to  an  end,  and  until  paid  over  or 
made  payable  to  the  defendant  by  order  of  court,  as  above 


SS  1256-1257  EMINENT    DOMAIN.  480 

provided,  and  until  such  time  or  times  the  county  clerk 
shall  be  deemed  to  be  the  custodian  of  the  money,  and  shall 
be  liable  to  the  plaintiff  upon  his  official  bond  for  the  same, 
or  any  part  thereof,  in  case  it  be  for  any  reason  lost  or 
otherwise  abstracted  or  withdrawn.  The  court  may  order 
the  money  to  be  deposited  in  the  state  treasury,  and  in 
such  case  it  shall  be  the  duty  of  the  state  treasurer  to  re- 
ceive all  such  moneys,  duly  receipt  for,  and  to  safely  keep 
the  same  in  a  special  fund,  to  be  entered  on  his  books  as 
a  condemnation  fund  for  such  purpose,  and  for  such  duty 
he  shall  be  liable  to  the  plaintiff  upon  his  official  bond. 
The  state  treasurer  shall  pay  out  such  money  so  deposited 
in  such  manner  and  at  such  times  as  the  court  or  a  judge 
thereof  may,  by  order  or  decree,  direct.  In  all  cases  where 
a  new  trial  has  been  granted  upon  the  application  of  the 
defendant,  and  he  has  failed  upon  such  trial  to  obtain 
greater  compensation  than  was  allowed  him  upon  the  first 
trial,  the  costs  of  such  new  trial  shall  be  taxed  against  him. 
En.  March  11,  1872.  Am'd.  1877-8,  108;  1880,  119;  1897, 
•186;  1903,  109. 

Cal.  Rep.  Cit.  47,  70;  47,  519;  47,  520;  47,  523;  49,  241; 
53,  211;  65,  376;  77,  29;  78,  81;  78,  444;  78,  448;  83, 
567;  95,  221;  95,  223;  103,  235;  104,  22;  104,  24;  133, 
532;   137,  575;   137,  576;   137,  578;   138,  544;   141,  48. 

Interest:  Ante,  sec.  1249. 

§  1255.     Costs   may   be  allowed,   apportionment  thereof. 

Costs  may  be  allowed  or  not,  and  if  allowed,  may  be  appor- 
tioned between  the  parties  on  the  same  or  adverse  sides, 
in  the  discretion  of  the  court.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  88,  67;  88,  68;  98,  262;  104,  22;  104,  23; 
125,  106;    133,  7;    139,  136. 

§  1256.  Rules  of  practice.  Except  as  otherwise  pro- 
vided in  this  title,  the  provisions  of  part  two  of  this  code 
are  applicable  to  and  constitute  the  rules  of  practice  in 
the  proceedings  mentioned  in  this  title.  En.  March  11, 
1872. 

CaL  Rep.  Cit.    50,  506;  67,  62;  74,  265;  134,  377;  138,  582. 

Part  two:  Ante,  sees.  307  et  seq. 

§  1257.  New  trials  and  appeals.  The  provisions  of  part 
two  of  this  code,  relative  to  new  trials  and  appeals,  except 


«X  EMINENT    DOMAIN.  55  125S-11"61 

in  SO  far  as  they  are  inconsistent  with  the  provisions  of 
this  title,  apply  to  the  proceedings  mentioned  in  this  title; 
provided,  that  upon  the  payment  of  the  sum  of  money  as- 
sessed, and  upon  the  execution  of  the  bond  to  build  the 
fences  and  cattle-guards,  as  provided  in  section  twelve 
hundred  and  fiftj^-one,  the  plaintiff  shall  be  entitled  to 
enter  into,  improve,  and  hold  possession  of  the  property 
sought  to  be  condemned  (if  not  already  in  possession)  as 
provided  in  section  twelve  hundred  and  fifty-four,  and  de- 
vote the  same  to  the  public  use  in  question;  and  no  motion 
for  new  trial  or  appeal  shall,  after  such  payment  and  fil- 
ing of  such  bond  as  aforesaid,  in  any  manner  retard  the 
contemplated  improvement.  Any  money  which  shall  have 
been  deposited,  as  provided  in  section  twelve  hundred  and 
fifty-four,  may  be  applied  to  the  payment  of  the  money 
assessed  and  the  remainder,  if  any  there  be,  shall  be  re- 
turned to  the  plaintiff.  En.  March  11,  1872.  Am'd.  1877-8, 
109;   1897,  188;   1903,  110. 

Cal.    Rep.    Cit.     59,    SO;    104,   27. 

§  1258.  When  title  takes  effect,  and  construction  of. 
With  relation  to  the  acts  passed  at  the  present  session 
of  the  legislature,  this  title  must  be  construed  in  the  same 
manner  as  if  this  code  had  been  passed  on  the  last  day  of 
this  session,  and  from  and  after  the  time  this  code  takes 
effect,  all  laws  of  this  state  in  relation  to  the  taking  of 
private  property  for  public  uses  are  abolished,  and  all 
proceedings  had  in  the  exercise  of  the  powers  of  eminent 
domain  must  conform  to  the  provisions  of  this  title.  Eu. 
March  11,  1872. 

§  1259.  When  title  takes  effect.  Title  seven  of  part 
three  of  the  Code  of  Civil  Procedure  of  the  state  of  Cali- 
fornia (this  title)  shall  be  in  force  and  effect  from  and 
after  the  fourth  day  of  April,  one  thousand  eight  hundred 
and  seventy-two.    En.  March  11,  1872. 

§  1260.  Construction.  From  and  after  the  time  this 
title  takes  effect,  it  must  be  construed  in  the  same  man- 
ner as  it  would  be  were  sections  four  and  seventeen  of 
this  code  in  force  and  effect.    En.  March  11,  1872. 

§  1261,  Pending  proceedings  not  affected.  No  proceed- 
ing to  enforce  the  right  of  eminent  domain  coiiimenced 
before  this  title  takes  effect  is  affected  by  the  provisions 
of  this  title.     En.  March  11,  1872. 

Code    CivU    Proc— SI. 


S§  1262-1264  EMINENT    DOMAIN.  02 

§  1262.  Rules  of  practice.  Until  the  first  day  of  Janu- 
ary, one  thousand  eight  hundred  and  seventy-three,  at 
twelve  o'clock  noon,  the  provisions  of  sections  twelve 
hundred  and  fifty-six  and  twelve  hundred  and  fifty-seven 
of  this  title  are  suspended,  and  until  then,  except  as  other- 
wise provided  in  this  title,  the  rules  of  pleading  and  prac- 
tice in  civil  actions  now  in  force  in  this  state  are  applica- 
ble to  the  proceedings  mentioned  in  this  title,  and  consti- 
tute the  rules  of  pleading  and  practice  therein.  En.  March 
11,  1872. 

§  1263.  Exceptions.  Nothing  In  this  code  must  be  con- 
strued to  abrogate  or  repeal  any  statute  providing  for 
the  taking  of  property  in  any  city  or  town  for  street  pur- 
poses.    En.   March  11,  1872. 

Cal.  Rep.  Cit.     66,  506;   79,  161;   87,  231;   91,  247;   91,  248. 

§  1264.  Preference  of  proceedings  over  other  civil  ac- 
tions. In  all  actions  brought  under  the  provisions  of  this 
title,  to  enforce  the  right  of  eminent  domain,  all  courts 
wherein  such  actions  are  or  may  hereafter  be  pending, 
shall  give  such  actions  preference  over  all  other  civil  ac- 
tions therein.  In  the  matter  of  setting  the  same  for  hearing 
or  trial,  and  in  hearing  the  same,  to  the  end  that  all  such 
actions  shall  be  quickly  heard  and  determined.  En.  Stats. 
1903,   165. 


ISa  ESCHEATED    ESTATES.  SS  12ea,  12» 

TITLE  VIIL 

OF    ESCHEATED    ESTATES, 

§  1269.    Manner    of    commencing    proceedings    relative    to    escheated    es- 
tates. 
§  1270.     Rpctiver   of  rents   and   profits   may  be  appointed. 
§  1271.    Appearance,    pleadings,    aird    trial. 
§  1272.     Proceedings   by   persons  claiming  escheated   estates. 

§  1269.  Manner  of  commencing  proceedings  relative  to 
escFieated  estates.  When  the  attorney  general  is  informed 
that  any  real  estate  has  escheated  to  this  state,  he  must 
file  an  information  in  behalf  of  the  state  in  the  superior 
court  of  the  county  in  which  such  estate,  or  any  part 
thereof,  is  situated,  setting  forth  a  description  of  the 
estate,  the  name  of  the  person  last  seised,  the  name  of  the 
occupant  and  person  claiming  such  estate,  if  known,  and 
the  facts  and  circumstances  in  consequence  of  which  the 
estate  is  claimed  to  have  escheated,  with  an  allegation 
that,  by  reason  thereof,  the  state  of  California  has  right 
by  law  to  such  estate.  Upon  such  information,  a  summons 
must  issue  to  such  person,  requiring  him  to  appear  and 
answer  the  information  within  the  time  allowed  by  law  in 
civil  actions;  and  the  court  must  make  an  order  setting 
forth  briefly  the  contents  of  the  information,  and  requir- 
ing all  persons  interested  in  the  estate  to  appear  and  show 
cause,  if  any  they  have,  within  forty  days  from  the  date 
of  the  order,  why  the  same  should  not  vest  in  this  state; 
which  order  must  be  published  for  at  least  one  month  from 
the  date  thereof,  in  a  newspaper  published  in  the  county, 
if  one  be  published  therein,  and  in  case  no  newspaper  is 
published  in  the  county,  in  some  other  newspaper  in  this 
state.    En.   March   11,  1872.    Am'd.   1880,   110. 

Cal.  Rep.  Cit.  65,  595;  67,  381;  67,  385;  110,  410;  143, 
140;  143,  141;  143,  197;  143.  198;  143,  201;  143,  202; 
143,  205;    143,  206;    143,  207. 

Property,  when  escheats:  Pol.  Code,  sec.  41. 
Duty   of   attorney  general:   Pol.    Code,    sec.    474. 
Unclaimed  realty  of  nonresident  aliens  escheats  to  state: 
Civ.    Code,    sec.    672. 

§  1270.  Receiver  of  rents  and  profits  may  be  appointed. 
The  court,  upon  the  information  being  filed,  and  upon  the 
application  of  the  attorney  general,  either  before  or  after 


I  1271  ESCHEATED    ESTATES.  «« 

answer,  upon  notice  to  the  party  claimin'g  such  estate  If 
known,  may,  upon  sufficient  cause  therefor  being  shown, 
appoint  a  receiver  to  take  charge  and  receive  the  rents 
and  profits  of  the  same  until  the  title  to  such  real  estate 
Is  finally  settled.    En.  March  11,  1872. 

Cal.  Rep.  Clt.      143,  140;  143,  141;  143,  197;  143,  198;  143, 
201;   143,  202;   143,  205;   143,  206;   143,  207. 

Appointment  of  receiver:   See  generally,  ante,  sees.  564- 
569. 

§  1271.     Appearance,   pleadings,   and   trial.     All   persons 

namod  in  the  Information  may  appear  and  answer,  and  may 
traverse  or  deny  the  facts  stated  in  the  Information,  the 
title  of  the  state  to  lands  and  tenements  therein  mentioned, 
at  any  time  before  the  time  for  answering  expires,  and 
any  other  person  claiming  an  interest  In  such  estate  may 
appear  and  be  made  a  defendant,  and  by  motion  for  that 
purpose  In  open  court  within  the  time  allowed  for  an- 
swering; and  if  no  person  appears  and  answers  within  the 
time,  then  judgment  must  be  rendered,  that  the  state  be 
seised  of  the  lands  and  tenements  in  such  Information 
claimed.  But  if  any  person  appear  and  deny  the  title  set 
up  by  the  state,  or  traverse  any  material  fact  set  forth  In 
the  Information,  the  Issua  of  fact  must  be  tried  as  issues  of 
facts  are  tried  In  civil  actions.  If,  after  the  Issues  are  tried. 
It  appears  from  the  facts  found  or  admitted  that  the  state 
has  good  title  to  the  land  and  tenements  in  the  information 
mentioned,  or  any  part  thereof.  Judgment  must  be  ren- 
dered that  the  state  be  seised  thereof,  and  recover  costs  of 
suit  against  the  defendants.  In  any  judgment  rendered,  or 
that  has  heretofore  been  rendered  by  any  court  of  compe- 
tent jurisdiction,  escheating  real  property  to  the  state,  on 
motion  of  the  attorney  general,  the  court  shall  make  an  or- 
der that  said  real  property  be  sold  by  the  sheriff  of  the 
county  where  the  same  is  situate,  at  public  sale,  for  gold 
coin,  after  giving  such  notice  of  the  time  and  place  of  sale 
as  may  be  prescribed  by  the  court  in  the  said  order;  that 
the  sheriff  shall,  within  five  days  after  such  sale,  make  a 
report  thereof  to  the  court,  and  upon  the  hearing  said 
report,  the  court  may  examine  the  said  report  and 
witnesses  In  relation  to  the  same,  and  if  the  proceed- 
ings were  unfair,  or  the  sutq  bid  disproportionate  to  the 
value,  and  If  it  appear  that  a  sum  exceeding  such  bid  at 
least  ten  per  cent,  exclusive  of  the  expense  of  a  new 
sale,  may  be  obtained,  the  court  may  vacate  the  sale,  and 


48S  ESCHEATED    ESTATES.  g  1271 

direct  another  sale  to  be  had,  of  which  notice  must  be 
given,  and  the  sale  In  all  respects  conducted  as  If  no 
previous  sale  had  taken  place.  If  an  offer  of  ten  per  cent 
more  in  amount  than  that  named  in  the  report  be  made  to 
the  court  in  writing,  by  a  responsible  person,  the  court 
may,  in  its  discretion,  accept  such  offer,  and  confirm  the 
sale  to  such  person,  or  order  a  new  sale.  If  it  appears  to 
the  court  that  the  sale  ■was  legally  ma-de,  and  fairly  con- 
ducted, and  that  the  sum  bid  is  not  disproportionate  to 
the  value  of  the  property  sold,  and  that  a  greater  sum 
than  ten  per  cent,  exclusive  of  the  expense  of  a  new  sale, 
cannot  be  obtained,  or  if  the  Increased  bid  above  mentioned 
be  made  and  accepted  by  the  court,  the  court  must  make 
an  order  confirming  the  sale,  and  directing  the  sheriff,  in 
the  name  of  the  state,  to  execute  to  purchaser  or  purchasers 
a  conveyance  of  said  property  sold;  and  said  conveyance 
shall  vest  in  the  purchaser  or  purhasers  all  the  right  and 
title  of  the  state  therein,  and  the  sheriff  shall,  out  of  the 
proceeds  of  such  sale,  pay  the  cost  of  said  proceedings 
incurred  on  behalf  of  the  state,  Including  the  expenses  of 
making  such  sale,  and  also  an  attorney's  fee,  if  additional 
counsel  was  employed  in  said  proceedings,  to  be  fixed  by 
the  court,  not  exceeding  ten  per  cent  on  the  amount  of  such 
sale,  and  the  residue  thereof  shall  be  paid  by  said  sheriff 
Into  the  state  treasury.  En.  March  11,  1872.  Am'd.  1881, 
11. 

Proceedings,  appearance:  Ante,  sec.  1014;  answer:  Ante, 
sec.  437;  judgment:  Ante,  sees.  585,  664;  trial:  Ante,  sees. 
600-645;  issue  of  fact:  Ante,  sees.  590,  592;  costs:  Ante, 
Bees.  1021  et  seq. 

§  1272.  Proceedings  by  persons  claiming  escheated  es- 
tates. Within  twenty  years  after  judgment  In  any  pro- 
ceeding had  under  this  title,  a  person  not  a  party  or  privy 
to  such  proceeding  may  file  a  petition  In  the  superior  court 
of  the  county  of  Sacramento,  showing  his  claim  or  right 
to  the  property,  or  the  proceeds  thereof.  A  copy  of  such 
petition  must  be  served  on  the  attorney  general  at  least 
twenty  days  before  the  hearing  of  the  petition,  who  must 
answer  the  same;  and  the  court  thereupon  must  try  the 
Issue  as  issues  are  tried  in  civil  actions,  and  If  it  be  de- 
termined that  such  person  is  entitled  to  the  property,  or 
the  proceeds  thereof,  it  must  order  the  property,  If  It  haa 
not  been  sold,  to  be  delivered  to  him,  or  if  it  has  been  sold 
and  the  proceeds  paid  into  the  state  treasury,  then  it  must 
order  the  controller  to  draw  his  warrant  on  the  treasury 


5  J  1275,  1276  CHANGE   OF   NAMES.  486 

for  the  payment  of  the  same,  but  without  Interest  or  cost 
to  the  state,  a  copy  of  which  order,  under  the  seal  of  the 
court,  shall  be  a  sufficient  voucher  for  drawing  such  war- 
rant. All  persons  who  fall  to  appear  and  file  their  petitions 
within  the  time  limited  are  forever  barred,  saving,  how- 
ever, to  infants,  married  women,  and  persons  of  unsound 
mind,  or  persons  beyond  the  limits  of  the  United  States, 
the  right  to  appear  and  file  their  petitions  at  any  time 
within  the  time  limited,  or  five  years  after  their  respective 
disabilities  cease.  En.  March  11,  1872.  Am'd.  1880,  110. 
Cal.  Rep.  Clt.     65,  595;   67,  381;   67,  383;   67,  386;   70,  157; 

143,   140;    143,  141;    143,  197;    143,  198;    143,  201;    143, 

202;   143,  205;   143,  206;   143,  207. 


TITLE  IX. 

OF    CHANGK   OF   NAMES. 
§  1275.     Jurisdiction. 

I  1276.     Application    for   change   of  name,    how    made. 
§  1277.     Order   to   show   cause;    publication;   proof   of   publication. 
5  1278.    Hearing   of  application  and   remonstrajice ;   corporations;   change 

of  name. 
g  1279.    Return  by  county  clerk. 

§  1275.  Jurisdiction.  Applications  for  change  of  names 
must  be  heard  and  determined  by  the  superior  courts.  En. 
March  11,  1872.     Am'd.  1880,  117. 

Cal.  Rep.  Clt.     128,  526;  123,  624. 

§  1276.     Application   for    change    of    name,     how    made. 

All  applications  for  change  of  names  must  be  made  to  the 
Buperior  court  of  the  county  where  the  person  whose  name 
Is  proposed  to  be  changed  resides,  by  petition,  signed  by 
such  person;  and  if  such  person  is  under  twenty-one  years 
of  age,  if  a  male,  and^nder  the  age  of  eighteen  years  of 
age,  if  a  female,  by  one  of  the  parents,  if  living,  or  if  both 
be  dead,  then  by  the  ■guardian;  and  if  there  be  no  guardian, 
then  by  some  near  relative  or  friend.  The  petition  must 
specify  the  place  of  birth  and  residence  of  such  person, 
his  or  her  present  name,  the  name  proposed,  and  the  reason 
for  such  change  of  name,  and  must,  if  the  father  of  such 
person  be  not  living,  name,  as  far  as  known  to  the  pe- 
titioner, the  near  relatives  of  such  person,  and  their  place 
of  residence.  Any  religious,  benevolent,  literary,  scien- 
tific, or  other  corporation,  or  any  corporation  bearing  or 
having  for  its  name,  or  using  or  being  known  by  the  name 
<rf  any  benevolent  or  charitable  order  or  society,  may,  by 


487  CHANGE   OF  NAMES.  i$  1277,  ms 

petition,  apply  to  the  superior  court  of  the  couiitx  in  which 
its  articles  of  incorporation  were  originally  filed,  or  in 
which  the  property  of  such  incorporation  is  situated,  for 
a  change  of  its  corporate  name.  Such  petition  must  be 
signed  by  a  majority  of  the  directors  or  trustees  of  the 
corporation,  and  must  specify  the  date  of  the  formation  of 
the  corporation,  its  present  name,  the  name  proposed,  and 
the  reason  for  such  change  of  name.  Upon  filing  such 
petition  on  behalf  of  such  corporation,  the  same  proceed- 
ings shall  be  had,  as  upon  applications  for  changes  of 
names  of  natural  persons,  and  no  banking  corporation 
hereafter  organized  shall  adopt  or  use  the  name  of  any 
frien-dlv  association.  En.  March  11,  1872,  Am'd.  1877-8, 
110;  1880,  117;  1885,  112. 
Cal.  Rep.  Clt.    123,  526;  123,  530. 

§  1277.  Order  to  show  cause;  publication;  proof  of  pub- 
lication. Upon  the  filing  of  the  said  petition  the  court 
shall  thereupon  make  an  order  reciting  the  filing  of  the 
application,  the  name  of  the  person  or  corporation  by 
whom  it  is  filed  and  the  name  proposed,  and  directing  all 
persons  interested  in  said  matter  to  appear  before  the 
court,  at  a  time  and  place  specified,  not  less  than  four  or 
more  than  eight  weeks  from  the  time  of  making  such  order, 
to  show  cause  why  the  application  for  change  of  name 
should  not  be  granted.  A  copy  of  the  order  to  show  cause 
must  be  published  for  four  successive  weeks  in  some  news- 
paper of  general  circulation  to  be  designated  in  the  order, 
printed  in  the  county,  if  a  newspaper  be  printed  therein, 
or,  if  no  newspaper  be  printed  in  the  county,  a  copy  of  such 
order  to  show  cause  shall  be  posted  by  the  clerk  of  the 
court  In  three  of  the  most  public  places  in  the  county  in 
which  the  court  is  held,  for  a  like  period.  Proof  must  be 
made  to  the  sa.tisfaction  of  the  co,urt,  of  such  publication, 
or  posting,  at  the  time  of  the  hearing  of  the  application. 
En.  March  11.  1872.     Am'd.  1905,  40. 

Cal.  Rep.  Cit    123,  526. 

§  1278.  Hearing  of  application  and  remonstrance.  Cor- 
porations, change  of  name.  Such  application  must  be  heard 
at  such  time  as  the  court  may  appoint,  and  objections  may 
be  filed  by  any  person  who  can,  in  such  objections,  show 
to  the  court  good  reason  against  such  change  of  name. 
On  the  hearing,  the  court  may  examine  on  oath  any  of  the 
petitioners,  remonstrants,  or  other  persons,  touching  the 
application,  and  may  make  an  order  changing  the  najue. 


§5   l-'3,   liai  AUrUTRATK^NS.  «» 

or  dismissing  the  application,  as  to  the  court  may  seem 
right  and  proper.  Provided,  that  if  the  applicant  for  a 
change  of  name  be  a  corporation,  such  applicant  shall  file 
in  court  at  the  time  of  hearing  the  application,  the  certifi- 
cate of  the  secretary  of  state  that  the  name  desired  to  be 
used  by  the  applicant,  is  not  the  corporate  name  of  any 
corporation  existing  at  said  time,  and  that  said  name  does 
not  so  closely  resemble  the  name  of  any  such  existing  cor- 
poration as  will  tend  to  deceive.  En.  March  11,  1872. 
Ara'd.  1S80,  117;  1905.  93. 
Cal.  Rep.  Cit.     123,  526. 

§  1279.  Return  by  county  clerk.  Each  county  clerk 
shall,  annually,  in  the  month  of  .January,  make  a  return 
to  the  office  of  the  secretary  of  state  of  all  changes  of 
names  made  in  the  superior  court  of  his  county  under  this 
title.  Such  return  shall  show  the  date  of  the  decree  of 
the  court,  original  name,  name  decreed,  and  residence. 
Such  returns  shall  be  published  in  a  tabular  form  with  the 
statutes  first  published  thereafter.  En.  Stats.  1873-4, 
413.     Am'd.  1880,  118. 

CaL  Rep.  Cit.    123,  526. 


TITLE  X. 

OF    ARBITRATIONS. 

§  1281.    What  may  be  snbmltted   to  arbitration,   and   when. 

§  12S2.     Submission    to    arbitration    to    be    In    writing. 

§  1283.  Submission  may  be  entered  sls  an  order  of  the  court.  Revoca- 
tion. 

§  1384.     Powers   of  arbitrators. 

§  1285.  Majority  of  arbitrators  may  determine  any  question.  They 
must  be  sworn. 

§  1286.     Award   to   be   In    writing.     When   Judgment   to   be   entered. 

§  12S7.     Award    may   be   \'acated    In    certain   cases. 

§  12SS.     Court   may,    on   motion,    modify   or  correct   the   award, 

§  12S9.  Decision,  on  motion,  subject  to  appeal,  but  not  the  Judgment 
entered   before   motion. 

{  1290.  If  submission  be  revoked  and  an  action  brought,  what  to  be 
njcovered. 

§  1281.  What  may  be  submitted  to  arbitration,  and 
when.  Persons  capable  of  contracting  may  submit  to  arbi- 
tration any  controversy  which  might  be  the  subject  of  a 
civil  action  between  them,  except  a  question  of  title  to 
real  property  in  fee  or  for  life.  This  qualification  does 
not  include  questions  relating  merely  to  the  partition  or 
boundaries  of  real  property.     En.  March  11,  1872. 


^^  ARBITRATIONS.  SS  1282-128S 

Cal.  Rep.  Clt     52,  164;    9G,  G19. 

Prac.  Act,  sec.  380.     En.  April  29,  18.51. 

Cal.  Rep.  Cit.     30,  221;    42,  482;    43,  394. 

5  1282.  Submission  to  arbitration  to  be  in  writing.  The 
submission  to  arbitration  must  be  in  yritinj^  and  may 
be  to  one  or  more  persons.     En.  March  11,  1872. 

Prac.  Act,  sec.  381.     En.  April  29,  1851. 

Cal.  Rep  Cit.     SO,  221. 

5  1283.  Submission  may  be  entered  as  an  order  of  tiie 
court  Revocation.  It  may  be  stipulated  in  the  submis- 
sion that  it  be  entered  as  an  order  of  the  superior  court, 
fir  whrch  purpose  It  must  be  filed  with  the  clerk  of  the 
SunTy  whire  the  parties,  or  one  of  them,  reside.  The 
clerk  must  thereupon  enter  in  his  register  of  actions  a 
note  of  the  submission,  with  the  names  of  the  parties,  the 
names  of  the  arbitrators,  the  date  of  the  submission  when 
filed  and  the  time  limited  by  the  submission,  if  any, 
within  which  the  award  must  be  made.  When  so  entered 
the  submission  cannot  be  revoked  without  the  consent  of 
both  parties.  The  arbitrators  may  be  compelled  by  the 
court  to  make  an  award,  and  the  award  may  be  enforced 
bv  the  court  in  the  same  manner  as  a  judgment.  If  the 
submission  is  not  made  an  order  of  the  court.  It  may  be 
revoked  at  any  time  before  the  award  Is  made.  En. 
March  11,  1872.     Am'd.  1880,  74. 

Cal.    Rep.    Cit.     65,    505;    76,  380;     82,  46;     99,  208;     99, 
209;    99,  210. 

Prac    Act,  sec.  382.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     30,  222;    42,  482;    43,  394. 

Register  of  actions  generally:  Ante,  sec.  1052. 

§  1284  Powers  of  arbitrators.  Arbitrators  have  power 
to  appoint  a  time  and  place  for  hearing,  to  adjourn  from 
time  to  time  to  administer  oaths  to  witnesses,  to  hear  the 
allegations  and  evidence  of  the  parties,  and  to  make  an 
award  thereon.     En.  March  11,  1872. 

Prac.  Act,  sec.  383.     En.  April  29,  185L 

8  1285.  Majority  of  arbitrators  may  determine  any  ques- 
tion. They  must  be  sworn.  All  the  arbitrators  must  meet 
and  act  together  during  the  investigation;  but  when  met, 
a  majority  may  determine  any  question.    Before    acting. 


i§    1286,1287  ARBITRATIONS.  490 

they  must  be  sworn  before  an  officer  authorized  to  admin- 
ister oaths,  faithfully  and  fairly  to  hear  and  examine  the 
allegations  and  evidence  of  the  parties  in  relation  to  the 
matters  in  controversy,  and  to  make  a  just  award  accord- 
ing to  their  understanding.  En.  March  11,  1872. 
Cal.  Eep.  Cit.     96,  620;  99,  210. 

Prac.  Act,  sec.  384.     En.  April  29,  1851. 

Majority  acting:  Ante,  sec.  1053. 

§  1286.  Award  to  be  in  writing.  When  judgment  to 
be  entered.  The  award  must  be  in  writing,  signed  by 
the  arbitrators,  or  a  majority  of  them,  and  delivered  to 
the  parties.  When  the  submission  is  made  an  order  of 
the  court,  the  award  must  be  filed  with  the  clerk,  and  a 
note  thereof  made  in  his  register.  After  the  expiration  of 
five  days  from  the  filing  of  the  award,  upon  the  applica- 
tion of  a  party,  and  on  filing  an  affidavit,  showing  that 
notice  of  filing  the  award  has  been  served  on  the  adverse 
party  or  his  attorney,  at  least  four  days  prior  to  such 
application,  and  that  no  order  staying  the  entry  of  judg- 
ment has  been  served,  the  award  must  be  entered  by  the 
clerk  in  the  judgment  book,  and  thereupon  has  the  effect 
of  a  judgment.     En  March  11,  1872. 

Cal.  Rep.  Cit.     74,  108. 

Prac.  Act,  sec.  385.     En.  April  29,  1851. 

Cal.  Rep.  Cit.    14,  394;    14,  395;    30,  222;    31,  129. 

§  1287.  Award  may  be  vacated  in  certain  cases.  The 
court,  on  motion,  may  vacate  the  award  upon  either  of  the 
following  grounds,  and  may  order  a  new  hearing  before 
the  same  arbitrators,  or  not,  in  its  discretion: 

1.  That  it  was  procured  by  corruption  or  fraud; 

2.  That  the  arbitrators  were  guilty  of  misconduct,  or 
committed  gross  error  in  refusing,  on  cause  shown,  to 
postpone  the  hearing,  or  in  refusing  to  hear  pertinent  evi- 
dence, or  otherwise  acted  improperly,  in  a  manner  by 
which  the  rights  of  the  party  were  prejudiced; 

3.  That  the  arbitrators  exceeded  their  powers  in  making 
their  award;  or  that  they  refused,  or  improperly  omitted, 
to  consider  a  part  of  the  matters  submitted  to  them;  or 
that  the  award  is  indefinite,  or  cannot  be  performed.  En. 
March  11,  1872. 

Cal.    Rep.    Cit.     96,   620;     128,   282.     Subd.   >— 140,   208; 
Subd.  3—140,  208. 


491  ARBITRATIONS.  88   1288-1290 

Prae.   Act,  sec.   886.     En.  April  29,   1851. 

Cal.  Eep.  Cit.  38,  287. 

Eeferee's  reports:    Ante,   sees.   643-645. 

§  1288.  Court  may,  on  motion,  modify  or  correct  the 
award.  The  court  may,  on  motion,  modify  or  correct  the 
award,  where  it  appears: 

1.  That  there  was  a  mii^calculation  in  figures  upon 
which  it  was  made,  or  that  there  is  a  mistake  in  the  de- 
scription of  some  person  or  property  therein; 

2.  When  a  part  of  the  award  is  upon  matters  not  sub- 
mitted, which  part  can  be  separated  from  other  parts,  and 
does  not  affect  the  decision  on  the  matters  submitted; 

3.  When  the  award,  though  imperfect  in  form,  could 
have  been  amended  if  it  had  been  a  verdict,  or  the  imper- 
fection disregarded.     En.  March  11,  1872. 

Cal.  Rep.  Cit.    96,  620;    128,  282. 

Prac.  Act,  sec.  387.    En.  April  29,  1851. 

Cal.  Rep.  Cit     3S,  2«'7. 

§  1289.  Decision,  on  motion,  subject  to  appeal,  but  not 
the  judgment  entered  before  motion.  The  decision  upon 
the  motion  is  subject  to  appeal  in  the  same  manner  as  an 
order  which  is  subject  to  appeal  in  a  civil  action;  but  the 
judgment  entered  before  a  motion  made  cannot  be  subject 
to  appeal.     En.  March  11,  1872. 

Cal.  Rep.  Cit.    128,  281;    140,  211. 

Prac.  Act,  sec.  388.     En.  April  29,  1851. 

Cal.  Rep.  Cit     88,  286;    42,  128. 

Motion    to    vacate    or  modify  award:   Ante,  sees.  1287 
1288. 
Appealable  orders:   Ante,  sec.  939. 

§  1290.  If  submission  be  revoked  and  an  action  brought, 
what  to  be  recovered.  If  a  submission  to  arbitration  be 
revoked,  and  an  action  be  brought  therefor,  the  amount 
1o  be  recovered  can  only  be  the  costs  and  damages  sus- 
tained in  preparing  for  and  attending  the  arbitration.  En, 
March  11,  1872. 

Cal.  Rep.  Cit  96,  619. 

Prac.  Act,  sec.  389.     En.  April  29,  1851, 


i  1294  JURISDICTION. 


TITLE  XI. 

OF  PROCEEDINGS  IN  PROBATE  COURTS. 

Chapter  I.     Of  Jurisdiction,   §§   1294-1295. 

II.     Of  the  Probate  of  Wills,   §§   1298-1346. 
ni.     Of  Executors   and    Administrators,   Their   Let- 
ters,    Bonds,     Rej.'M>vals,     and     Suspensions, 
§§   1348-1440. 
IV.     Of  the  Inventory  and  Collection  of  the  Effects 
of  Decedents,   §§   1443-1461. 
V.     Of  the  Provisions  for  Support  of  Family,  and 
of  the  Homestead,   g§   1464-1486. 
VI.     Of   Claims   Against   the   Estate,    §§   1490-1514. 
VII.     Of     Sclles     and     Conveyance     of     Property     of 

Decedents,  §§   1516-1579. 
VIII.     Of   the   Powers   and    Duties    of   Executors   and 
Administrators,    and   of   the   Management   of 
Estates,    §§    1581-1591. 
IX.     Of  the  Conveyance  of  Real   Estate  by  Execu- 
tors   and    Administrators    in    Certain    Cases, 
§§   1597-10:.  7. 
X.     Of  Accounts   Rendered   by  Executors  and  Ad- 
ministrators, and  of  the  Payment  of  Dsbts, 
§§   1612-1653. 
XI.     Of   the   Partition,   Distribution   and    Final   Set- 
tlement of  Estates,  §§  1658-1703%. 
XII.     Of  Orders,  Decrees,  Process,  Minutes,  Records, 
Trials,    and   Appeals,    §§    1704-1723. 

XIII.  Of  Public   Administrator,    §§    1726-1744. 

XIV.  Of  Guardian  and  Ward,  §§  1747-1810. 


CHAPTER   I. 

OF  JURISDICTION. 

§  1294.    Jurisdiction    of   probate    court   over   the    estate,    when    exercised. 
§  12S5.     When    jurisdiction    deci^3ed    by    first    application. 

§  12S4.  Jurisdiction  of  probate  court  over  the  estate, 
v\'hr-n  exercised.  Wills  must  be  proved,  and  letters  tejla- 
u.c:->.:i;y  or  of  administration  granted: 


498  JURISDICTION.  8   1295 

1.  In  the  county  of  which  the  decedent  waa  a  resident 
at  the  time  of  his  death,  in  whatever  place  he  may  have 
died; 

2.  In  the  county  in  which  the  decedent  may  have  died, 
leaving  estate  therein,  he  not  being  a  resident  of  the 
Btate; 

8.  In  the  county  in  which  any  part  of  the  estate  may  be, 
the  decedent  having  died  out  of  the  state,  and  not  resident 
thereof  at  the  time  of  his  death; 

4.  In  the  county  in  which  any  part  of  the  estate  may  be, 
the  decedent  not  being  a  resident  of  the  state,  and  not 
leaving  estate  in  the  county  in  which  he  died; 

5.  In  all  other  cases,  in  the  county  where  application 
for  letters  is  first  made.     En.  March  11,  1872. 

Cal.  Rep.  Cit.   70,  407;  70,  411;   71,  522;   109,  253. 

Prob.  Act,  sec.  2.  En.  April  22,  1850.  Eep.  1851,  489, 
En.  1851,  448.     Am'd.  1861,  628. 

Probate  matters,  jurisdiction  of  superior  courts  in:  Ante, 
Bee.  76,  subd.  4. 

§  1295.  When  Jurisdiction  decided  by  first  application. 
When  the  estate  of  the  decedent  is  in  more  than  one 
county,  he  hajving  died  out  of  the  state,  and  not  having 
been  a  resident  thereof  at  the  time  of  his  death,  or  being 
Buch  nonresident,  and  dying  within  the  state,  and  not 
leaving  estate  in  the  county  where  he  died,  the  superior 
court  of  that  county  in  which  application  is  first  made,  for 
letters  testamentary  or  of  administration,  has  exclusive 
jurisdiction  of  the  settlement  of  the  estate.  En.  March 
11,  1872.     Am'd.  1880,  77. 

Prob.  Act,  sec.  3.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.    Am'd.  1861,  628 j  1864,  867. 


|§  1298,  1239  PUOCATE   OF    WILLS.  49* 

CHAPTER   II. 

OF  THE   PROBATE   OF    WILLS. 

ArtJcl«    I.     P«tmon,    Notice,    and    Proof,    §§    129S-1309. 
IJ.     Contesting    Probate    of    Will,    §§    1312-131S 
2IL    Probate    of    Foreign    Wills,    §§    1322-1:524. 
rw.    ContesUng  "Will   after   Prob.ile,    §§    1327-1333. 
y.     Probate   of   Lost   or  Destroyed   Will,    §§    133S-1341. 
VL    FmbaXa   of   Nuncupative   Wills,    §§    1344-1346. 

ARTICLE   I. 

FETITION,    NOTICE,    AND   PROOF. 

§  7298.  Cnsrtodlan   of   will   to   deliver  same,    to   whom. 

§  12'j9.  Who   may   fietition   for  probate   of   will, 

f  13*10.  Contents   of   petition. 

5  ISOl.  When   executor    forfeits    right   to    letters. 

I  1302.  Possession   of    will   by    third    person.     Production    of. 

§  1303.  Notice   of   petition    for  probate,    how   given. 

§  1304.  Heirs   and   named   executors   to  be   notified,   how. 

§  1305.  Order    to    enforce    production    of    wills    or    attendance    of    wit- 
nesses. 

§  1306.  Hearing  proof  of  will   after  proof  of  service  of  notice. 

§  1307.  Who    may   appear   and   contest   the   will. 

§  1308.  Probate,    when   no  contest. 

§  1309.  Olographic   wills. 

§  1298.  Custodian  of  will  to  deliver  same,  to  whom. 
Every  custodian  of  a  will,  within  thirty  days  after  re- 
ceipt of  information  that  the  maker  thereof  is  dead,  must 
deliver  the  same  to  the  superior  come  having  jurisdiction 
of  the  estate,  or  to  the  executor  named  therein.  A  failure 
to  comply  with  the  provisions  of  this  section  makes  the 
person  failing  responsible  for  all  damages  sustained  by 
anyone  injured  thereby.  En.  March  II,  1872.  Am'd.  1880, 
77. 

Prob.  Act,  sec.  4.  En.  April  22,  1850.  Eep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  22,  397. 

Prob.  Act,  sec.  7.  En.  April  22,  1850.  Eep.  1851,  489. 
En.  1851,  448. 

§  1299.  Who  may  petition  for  probate  of  will.  Any 
executor,  devisee,  or  legatee  named  in  any  will,  or  any 
other  person  interested  in  the  estate,  may,  £tt  any  time 
after  tke  death  of  the  testator,  petition  the  court  having 


4!6  PROBATE   OF   WILLa  5§  1300-1302 

Jurisdiction  to  have  the  will  proved,  whether  the  same  be 
in  writing,  in  his  possession  or  not  or  is  lost  or  destroyed, 
or  beyond  the  jurisdiction  of  the  state,  or  a  nuncupative 
wilL    En.    March    11,   1872. 

Cal.  Rep.  Cit.     93,  620;   120,  451;   135,  677;    145,  87. 

Prob.  Act,  sec.  5.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit    22,  66;   22,  397. 

Prob.  Act,  sees.  89.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1300.     Contents  of  petition.     A  petition  for  the  probate 
of  a  will  must  show: 
L  The   jurisdictional    facts. 

2.  Whether  the  person  named  as  executor  consents  to 
act,  or  renounces  his  right  to  letters  testamentary. 

3.  The  names,  ages,  and  residence  of  the  heirs  and 
devisees  of  the  decedent,  so  far  as  known  to  the  petitioner. 

4.  The  probable  value  and  character  of  the  property  of 
the  estate. 

5.  The  name  of  the  person  for  whom  letters  testamentary 
are  prayed. 

No  defect  of  form,  or  in  the  statement  of  jurisdictional 
facts  actually  existing,  shall  make  void  the  probate  of  a 
will.    En.  March  11,  1872.     Am'd.  1873-4,  356. 

Cal.  Rep.  Cit     70,  142;   93,  620. 

Prob.  Act  sec.  6.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,   448.     Am'd.  1861,  629. 

Cal.  Rep.  Cit     22,  66;   22,  397. 

§  1301.  When  executor  forfeits  right  to  letters.  If  the 
person  named  in  a  will  as  executor,  for  thirty  days  after 
he  has  knowledge  of  the  death  of  the  testator,  and  that  he 
is  named  as  executor,  fails  to  petition  the  proper  court  for 
the  probate  of  the  will,  and  that  letters  testamentary  be 
issued  to  him,  he  may  be  held  to  have  renounced  his  right 
to  letters,  and  the  court  may  appoint  any  other  competent 
person  administrator,  unless  good  cause  for  delay  is  shown. 
En.  March  11,  1872. 

Cal.  Rep.   Cit    118,  280. 

§  1302.  Possession  of  will  by  third  person.  Production 
of.    If  it  is  alleged  in  any  petition  that  any  will  is  in  the 


5  1303  PROBATE   OF   WII^I^.  •• 

possession  of  a  third  person,  and  the  court  is  satisfied 
that  the  allegation  is  correct,  an  order  must  be  issued 
and  served  upon  the  person  having  possession  of  the  will, 
requiring  him  to  produce  it  at  a  time  named  in  the  order. 
If  he  has  possession  of  the  will,  and  neglects  or  refuses 
to  produce  it  in  obedience  to  the  order,  he  may,  by  war- 
rant from  the  court,  be  committed  to  thp  jail  of  the 
county,  and  be  kept  in  close  confinement  until  he  pro- 
duces it.     En.  March  11,  1872. 

Prob.  Act,  sec.  10.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Prob.  Act,  sec.  11.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,   448. 

Probate  orders   and   citations:    Post,   sees.   1704-1711. 
Imprisonment  until  order  obeyed:  Ante,  sec.  1219. 

5  1303.  Notice  of  petition  for  probate,  how  given. 
When  the  petition  is  filed  and  the  will  produced,  the  clerk 
of  the  court  must  set  the  petition  for  hearing  by  the  court 
upon  some  day  not  less  than  ten  nor  more  than  thirty 
days  from  the  production  of  the  will.  Notice  of  the  hear- 
ing shall  be  given  by  such  clerk  by  publishing  the  same 
in  a  newspaper  of  the  county;  if  there  is  none,  then  by 
three  written  or  printed  notices  posted  at  three  of  the 
most  public  places  in  the  county.  If  the  notice  is  pub- 
lished in  a  weekly  newspaper,  it  must  appear  theroin  on 
at  least  three  different  days  of  publication;  and  if  in  a 
newsi>aper  published  oftener  than  once  a  week,  it  shall  be 
so  published  that  there  must  be  at  least  ten  days  from 
the  first  to  the  last  day  of  publication,  both  the  lirst  and 
the  last  day  being  included.  If  the  notice  is  by  posting, 
it  must  be  given  at  least  ten  days  before  the  hearing.  En. 
March  11,  1872.     Amd.  1880,  77;    1881,  23. 

Cal.  Rep.  Cit.  93,  620;  101,  668;  109,  28;  129,  152; 
136,  595;     141,  332. 

Prob.  Act,  sec.  13.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851.  448.  Am'd.  1861,  629;  1866,  765. 

Cal.  Rep.  Cit  22,  66;  22,  397;  39,  554. 

Prob.    Act,    sec.    16.     En.  April  22,  1850.     Rep.  1851,  489, 
En.  1851,  448.     Am'd.  1861,  629. 
Publication  of  notice:    Sec.  1705. 
Affidavit  of  publication:  Post,  sees.  2010,  2011. 


491  PROBATE    OF    WILLS.  §§  1304-130« 

§  1304.  HeFrs  and  named  executors  to  be  notified,  liow. 
Copies  of  the  notice  of  the  time  appointed  for  the  probate 
of  the  will  must  be  addressed  to  the  heirs  of  the  testator 
resident  in  the  state,  at  their  places  of  residence,  if 
known  to  the  petitioner,  and  deposited  in  the  postofflce, 
with  the  postage  thereon  prepaid,  at  least  ten  days  before 
the  hearing.  If  their,  places  of  residence  be  not  known, 
the  copies  of  notice  may  be  addressed  to  them,  and  de- 
posited in  the  postofEice  at  the  county  seat  of  the  county 
where  the  proceedings  are  pending.  A  copy  of  the  same 
notice  must  in  like  manner  be  mailed  to  the  person 
named  as  executor,  if  he  be  not  the  petitioner;  also,  to  any 
person  named  as  coexecutor  not  petitioning,  if  their  places 
of  residence  be  known.  Proof  of  mailing  the  copies  of  the 
notice  must  be  made  at  the  hearing.  Personal  service  of 
copies  of  the  notice  at  least  ten  lays  before  the  day  or 
hearing  Is  equivalent  to  mailing.  En.  March  11,  1872. 
Am'd.  1878-4,  857. 

Cal.   Rep.   Cit.     101,   668;     109,   28;     120,   851;     120,  430; 
138,  595. 

Prob.  Act,  sec.  14.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit     46,  316;    91,  634. 

Prob.  Act,  sec.  15.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1305.  Order  to  enforce  production  of  wills  or  attend- 
ance of  witnesses,  A  judge  of  the  superior  court  may  at 
any  time  make  and  issue  all  necessary  orders  and  writs 
to  enforce  the  production  of  wills  and  the  attendance  of 
witnesses.  En.  March  11.  1872.  Am'd.  1880,  78;  1891, 
427. 

Prob.  Act,  sec.  12.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  629. 

Probate  powers  at  chambers:   Ante,  sec.  166. 

Probate  orders  and  processes:   Post,  sees.  1704  et  seq. 

§  1306.  Hearing  proof  of  will  after  proof  of  service  of 
notice.  At  the  time  appointed  for  the  hearing,  or  the  time 
to  which  the  hearing  may  have  been  postponed,  the  court 
unless  the  parties  appear,  must  require  proof  that  the 
notice  has  been  given,  which  being  made,  the  court  must 
hear  testimony  in  proof  of  the  will.  En.  M^'rch  11,  1872. 
Am'd.  1873-4,  357. 

Cal.  Rep.  Cit.     49,  604;    101,  069;    113,  376. 
Ood«    ClvU    Proc.— 32. 


{{  1307,  1308  PROBATE    OF   WILLS.  M 

Prob.  Act,  sec.  17.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  18G1,  629. 

Testimony  In  proof  of  the  will:  Post,  sees.  1308,  1309, 
1815,  1316. 

B  1307.  Who  may  appear  and  contest  the  will.  Any 
person  interested  may  appear  and  contest  the  will.  Dev- 
isees, legatees,  or  heirs  of  an  estate  may  contest  the 
will  through  their  guardians,  or  attorneys  appointed  by 
themselves  or  by  the  court  for  that  purpose;  but  a  con- 
test made  by  an  attorney  appointed  by  the  court  does  not 
bar  a  contest  after  probate  by  the  party  so  represented,  if 
commenced  within  the  time  provided  in  article  four  of 
this  chapter;  nor  does  the  nonappointment  of  an  attor- 
ney by  the  court  of  itself  invalidate  the  probate  of  the 
will.     En.  March  11,  1872.     Am'd.  1873-4,  357. 

Cal.  Rep.  Cit.  54,  557;  74,  59;  98,  106;  101,  612;  122, 
163;    140,  433. 

Prob.  Act,  sec.  18.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  G30. 

Contest:   Sees.  1312  et  seq. 

Guardians:    Sees.  372,  373,  1747-1809. 

Attorney  appointed  by  the  court:   Sec.  1718. 

§  1308.  Probate  of  wills  not  contested.  If  no  person  ap- 
pears to  contest  the  probate  of  a  will,  the  court  may  admit 
it  to  probate  on  the  testimony  of  one  of  the  subscribing 
witnesses  only,  If  he  testifies  that  the  will  was  executed 
in  all  particulars  as  required  by  law,  and  that  the  testator 
was  of  sound  mind  at  the  time  of  its  execution.  If  it  ap- 
pears at  the  time  fixed  for  the  hearing  that  none  of  the 
subscribing  witnesses  reside  In  the  county,  but  that  the 
deposition  of  one  of  them  can  be  taken  elsewhere,  the 
court  may  direct  it  to  be  taken,  and  may  authorize  a 
photographic  copy  of  the  will  to  be  made  and  to  be  pre- 
sented to  such  witness  on  his  examination,  who  may  be 
asked  the  same  questions  with  respect  to  it  and  the  hand- 
writing of  himself,  the  testator,  and  the  other  witness,  as 
would  be  pertinent  and  competent  if  the  original  will  were 
present.  If  neither  the  attendance  in  court  nor  the  depo- 
sition of  any  of  the  subscribing  witnesses  can  be  pro- 
cured, the  court  may  admit  the  will  to  probate  upon  the 
testimony  Qf  any  other  witness  as  provided  in  section 
thirteen  hundred  and  seventeen.  En.  March  11,  1872. 
Am'd.  1905,  234. 

Ca.1.  Rep.  Cit.     73,  566;    140,  432. 


499  PnODATE   OF   WILLS.  J§  1309,  13ia 

Prob.  Act,  sec.  19.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Admitting  to  prabate,  v/here  contest:  Ante,  sees.  1314, 
1317,  1318;   conclusiveness  of:    Post,  sec.  1908,  subd.  1. 

§  1309.  Olographic  wills.  An  olographic  will  may  be 
proved  in  the  same  manner  that  other  private  writings 
are  proved.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     100,  207;     145,  85;     145,  409. 

Private  writings,  iic-w  proved:   Post,  sec.  1940. 


ARTKJLE  II. 

CONTESTINQ  PKOBATE  OF  WILLS. 

g  1818.  Contestant  to  file  grouzMl«  of  contest,   aad  petitioner  to  reply. 

1  1318.  How  Jury  obtained  and  trial  had. 
§  1314.  Verdict    of   the   Jury.    JuJjrmejit. 

2  1315.  Witnesses,   who  ami  'aow  many   to  be  examined.     Proof  of  h^d- 

^vrltlnff,    adroi'ited,    whin. 
1316.    Testimony    reduced    to   'writing   for   future   evidence. 
1817.     If  proved,    certlfio»-t-9   to  be   attached. 
1318.    Will  and  proof  to  t»d  filed  and  recorded. 

§  1312.  Contestant  to  file  grounds  of  contest,  and  peti- 
tioner to  reply.  If  anyone  appears  to  contest  the  will,  he 
must  file  written  grounds  of  opposition  to  the  probate 
thereof,  and  serve  a  copy  on  the  petitioner  and  other  resi- 
dents of  the  county  interested  in  the  estate,  any  one  or 
more  of  whom  may  demur  thereto  upon  any  of  the 
grounds  of  demurrer  provided  for  in  part  two,  title  six, 
chapter  three,  of  this  code.  If  the  demurrer  is  sustained, 
the  court  must  allow  the  contestant  a  reasonable  time, 
not  exceeding  ten  days,  within  which  to  amend  his  writ- 
ten opposition.  If  the  demurrer  is  overruled,  the  peti- 
tioner and  others  interested  may  jointly  or  separately 
answer  the  contestant's  grounds,  traversing  or  otherwise 
obviating  or  avoiding  the  objections.  Any  issues  of  fact 
thus  raised,  involving: 

1.  The  competency  of  the  decedent  to  make  a  last  will 
and  testament; 

2.  The  freedom  of  the  decedent  at  the  time  of  the  exe- 
cution of  the  will  from  duress,  menace,  fraud,  or  undue 
influence; 

3.  The  due  execution  and  attestation  of  the  will  by  the 
decedent  or  subscribing  witnesses;  or, 

4.  Any  other  questions  substantially  affecting  the  validity 
of  the  will; 


§§  1313,   1314  PROBATE    OF    WILL-S.  600 

— Must,  on  request  of  either  party  in  writing,  (filed 
three  days  prior  to  the  day  set  for  the  hearing),  be  tried 
by  a  jur>'.  If  no  jury  is  demanded,  the  court  must  try 
and  determine  the  issues  joined.  On  the  trial,  the  con- 
testant is  plaintiff  and  the  petitioner  is  defendant.  En. 
March  11.  1872. 

Cal.  Rep.  Cit.  56,  324;  56,  325;  63,  37;  67,  445;  73. 
566;  73,  567;  73,  569;  74,  205;  74,  206;  74,  207; 
74,  209;  74,  355;  98,  105;  100,  249;  101,  612;  106, 
495;  118,  661;  131,  474;  140,  129;  140,  420;  140, 
421;  140,  427;  140,  428;  140,  429;  140,  438.  Subd. 
1—72,  132;  79,  316.  Subd.  4—67,  445;  70.  142;  128, 
62;  133,  136;  133,  585;  140,  419. 
Prob.  Act,  sec.  20.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851.  448.     Am'd.  1855,  132;  ISCl,  030;  1868,  628. 

Cal.  Rep.  Cit.     34,  688;  35,  510;  35.  511;  46,  247;  74,  207. 
Contestant:   Ante,  sec.  1307. 

Contest,  after  probate:    Post,  sees.  1327  et  seq.;   throu-gh 
attorney  appointed  by  the  court:  Ante,  sec.  1307. 
Execution,  witnesses  to  be  called:   Post,  sec  1315, 
Grounds  of  demurrer:   Ante,  sees.  430-434. 
Service,  etc.:  Ante,  sees.  1010-1017. 

S  1313.  How  jury  obtained  and  trial  had.  When  a  jury 
is  demanded,  the  superior  court  may  impanel  a  jury  to  try 
the  cAse,  in  the  manner  provided  for  impaneling  trial 
juries  in  courts  of  record,  and  the  trial  must  be  conducted 
in  accordance  with  the  provisions  of  part  two,  title  eight, 
chapter  four,  of  this  code.  A  trial  by  the  court  must  be 
conducted  as  provided  in  part  two,  title  eight,  chapter  five, 
of  this  code.     En.  March  11,  1872.     AmM.  1880,  78. 

Trial  juries,  in  courts  of  record,  summoning:  Ante.  sees. 
225-228;   impaneling:   Ante,  sees.  246,  247. 

Conduct  of  trial:   Ante,  sees.  600-G28. 

Trial  by  the  court:   Ante,  sees.  631-636. 

Transfer  of  proceeding:  Ante.  sees.  397,  398;  post,  1430- 
1433. 

§  1314.  Verdict  of  the  jury.  Judgment  The  jury, 
after  hearing  the  case,  must  return  a  special  verdict  upon 
the  Issues  submitted  to  them  by  the  court,  upon  which  the 
judgment  of  the  court  must  be  rendered,  either  admitting 
the  will  to  probate  or  rejecting  it.  In  either  ease,  the 
proofs  of  the  subscribing  witnesses  must  be  reduced  to 
writing.  If  the  will  is  admitted  to  probate,  the  judgment, 
will,  and  proofs  must  be  recorded.     En.  March  11,  1872. 


BOl  PROBATE   OF   WILLS  §§  1315-1317 

Cal.  Rep.  Cit.     74,  208;  74.  209;  74,  355;  118,  CGI;  131,  474. 
Verdict,   generally:    Ante,   sees.    624-628. 
Proofs  reduced  to  writing:   Post,  sec.  1316. 

§  1315.  Witnesses,  who  and  how  many  to  be  examined. 
Proof  of  handwriting,  admitted,  when.  If  the  will  is  con- 
tested, all  the  subscribing  witnesses  who  are  present  in  the 
county,  and  who  are  of  sound  mind,  must  be  produced  and 
examined;  and  the  death,  absence,  or  insanity  of  any  of 
them  must  be  satisfactorily  shown  to  the  court.  If  none  of 
the  subscribing  witnesses  reside  in  the  county  at  the  time 
appointed  for  proving  the  will,  the  court  may  admit  the 
testimony  of  other  witnesses  to  prove  the  sanity  of  the 
testator  and  the  execution  of  the  will;  and  as  evidence  of 
the  execution  it  may  admit  proof  of  the  handwriting  of  the 
testator  and  of  the  subscribing  witnesses,  or  any  of  them. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.      58,  337;  121,  407;   121.  409;  140,  432. 

Prob.  Act,  sec.  21.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Prob.  Act,  sec.  22,  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Writings,  proof  of  execution:  Post,  sec.  1940. 

Witnesses,  generally:  Post,  sees.  1878-1884;  attendance 
of,  procuring:  Post,  sees.  1985  et  seq. 

§  1316.  Testimony  reduced  to  writing  for  future  evi- 
dence. The  testimony  of  each  witness,  reduced  to  writing 
and  si-gned  by  him,  shall  be  good  evidence  in  any  subse- 
quent contests  concerning  the  validity  of  the  will,  or  the 
sufficiency  of  the  proof  thereof,  if  the  witness  be  dead,  or 
has  permanently  removed  from  this  state.  En,  March  11, 
1872. 

Prob.  Act,  sec,  23.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit     22,  69. 

§  1317.  If  proved,  certificate  to  be  attached.  If  the 
court  is  satisfied,  upon  the  proof  taken,  or  from  the  facts 
found  by  the  jury,  that  the  will  was  duly  executed,  and  that 
the  testator  at  the  time  of  its  execution  was  of  sound  and 
disposin-g  mind,  and  not  acting  under  duress,  menace,  fraud, 
or  undue  influence,  a  certificate  of  the  proof  and  the  facts 
found,  signed  by  the  judge,  and  attested  by  the  seal  of  the 
court,  must  be  attached  to  the  will.  En.  March  11,  1872. 
Am'd.  1880,  78. 

Cal.  Rep.  Cit     73,  572;  140,  432. 


§§   1318-1323  PROBATE    OF    WILLS.  »02 

Prob.    Act,  sec.   24.     En.    April   22,   1850.     Rep.   1S51,   489. 
En.  1851,  448.     Am'd.  1S55,  132. 
Cal.  Rep.  Cit.     22,  G9. 
Seal  required:  Ante,  sec.  153,  subd.  2. 

S  1318.     Will   and   proof  to  be  filed  and   recorded.     The 

will  and  a  certificate  of  the  proof  thereof,  must  be  filed  and 
lecorded  by  the  clerk,  and  the  same,  when  so  filed  and  re- 
corded, shall  constitnte  part  of  the  record  in  the  cause  or 
proceeding.  All  testimony  shall  be  filed  by  the  clerk.  En. 
March  11,  1872.     Am'd.  1880,  Gl. 

Cal.  Rep.  Cit.     56,  324. 

Prob.  Act,  sec.  25.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

CaL  Rep.  Cit     22,  69. 

ARTICLE  m. 

PROBATE  OF  FOREIGN  WILLS. 

§  1SS2.    Wills  proved   in   other   states  to  be   recorded   when   and   where. 
§  1323.     Proceedings   on   the   production   of   a  foreign   will. 
5  1324.    Hearfngr  proofs  of  probate   of  foreign   will. 

§  1322.  Wills  proved  in  other  states  to  be  recorded 
when  and  where.  All  wills  duly  proved  and  allowed  in 
any  other  of  the  United  States,  or  in  any  foreign  county 
or  state,  may  be  allowed  and  recorded  in  the  superior  court 
of  any  county  in  which  the  testator  shall  have  left  any  es- 
tate.    En.  March  11,  1872.     Am'd.  1880,  78. 

Cal.  Rep.  Cit.  86,  101;  86,  103;  100,  377;  120,  345;  132. 
403;   141,  540. 

Prob.  Act,  sec.  27.  Ehi.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448.     Am'd.   1863,  37. 

§  1323.  Proceedings  on  the  production  of  a  foreign  will. 
When  a  copy  of  the  will  and  the  probate  thereof,  duly 
authenticates!,  shall  be  produced  by  the  executor,  or  by  any 
other  person  interested  in  the  will,  with  a  petition  for  let- 
ters, the  same  must  be  filed,  and  the  court  or  judge  must 
appoint  a  time  for  the  hearing:  notice  whereof  must  be 
given  as  hereinbefore  provided  for  an  original  petition  for 
the  probate  of  a  will.     En.  March  11,  1872. 

Cal.  Rep.  Cit  86,  101;  86,  102;  100,  377;  120,  345;  120, 
346;    124,  293;   141,  540. 


603        •  PROBATE   OF   WII.L3.  55  1324,  1321 

Prob.    Act,   sec.   28.     En.   April    22,   1850.     Rep.   1851,  489. 
En.  1851,  448.       Am'd.  18G1,  G30;  18G4,  367. 
Cal.  Rep.  Cit.     39,  554. 

Foreign  executor,  no  extraterritorial  authority:  Post, 
sec.  1913. 

Notice  as  for  an  original  petition:  Ante,  sees.  1303  et  Beq. 
Attorney  for  absent  heirs:  Post,  sec.  1718. 
Petition,  notice,  etc.:  Ante,  sees.  1299-1318. 

§  1324.     Hearing  proofs  of  probate  of  foreign  will.     If ,  on 

the  hearing,  it  appears  upon  the  face  of  the  record  that  the 
will  has  been  proved,  allowed,  and  admitted  to  probate  In 
any  other  of  the  United  States,  or  in  any  foreign  country, 
and  that  it  was  executed  according  to  the  la-w  of  the  place 
in  which  the  same  was  made,  or  in  which  the  testator  was 
at  the  time  domiciled,  or  in  conformity  with  the  laws  of 
this  state,  it  must  be  admitted  to  probate  and  have  the 
same  force  and  effect  as  a  will  first  admitted  to  probate  in 
this  state,  and  letters  testamentary  or  of  administration  is- 
sued thereon.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  86,  101;  86,  102;  100,  377;  120,  345;  132, 
403;     141,  540. 

Prob.  Act,  sec.  29.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  630;    1864,  368. 

Letters  testamentary  or  of  administration:  Post,  sees. 
1349-1362. 


ARTICLE  IV. 

CONTESTING  WILL  AFTER  PROBATB. 

§  1327.     The   probate   may   be   contested   within   one   year. 

§  1328.     Citation    \.o   be   issued    to   parties   interested. 

§  1329.     The   hearing  had   on   proof  of  service. 

§  1330.  Petitions  to  revoke  probate  of  will  tried  by  jury  or  court. 
Judgment,    what. 

5  1331.  On  revocation  of  probate,  powers  of  executor,  etc,  cease,  but 
not  liable  for  acts  in   good  faith. 

5  1332.     Costs   and    expenses,    by    whom    paid. 

5  1333.  Probate,  when  conclusive.  One  year  after  removal  of  disabil- 
ity  given   to   infants   aird   others. 

§  1327.     The  probate  may  be  contested  within  one  year. 

When  a  will  has  been  admitted  to  probate,  any  person  in- 
terested may,  at  any  time  within  one  year  after  such 
probate,  contest  the  same  or  the  vali-dity  of  the  will.     For 


§§  1328,  1329  PROBATE   OF   WILLS.  •         MM 

that  purpose  he  must  file  in  the  court  in  which  the  will  ./as 
proved,  a  petition  in  writing,  containing  his  allegations 
against  the  validity  of  the  will  or  against  the  sufficiency  of 
the  proof,  and  praying  that  the  probate  may  be  revoked. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.  51,  569;  52,  95;  54,  557;  63,  6;  90,  623; 
98,  204;  100,  250;  109,  28;  116,  446;  116,  450;  116,  643; 
118,  6G1;    118,  662;    133,  136;    136,  594;    140,  437. 

Prob.  Act,  sec.  30.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,    448. 

Cal.    Rep.    Cit.     20,   272;    34,    504. 

Allegations   against   validity   of   will:  Ante,    sec.    1312. 

Probate,  conclusive:  Ante,  sec.  1333. 

§  132S.,  Citation  to  be  issu'ed  to  parties  interested. 
Upon  filing  the  petition,  a  citation  must  be  issued  to  the 
executors  of  the  will,  or  to  the  administrators  with  the 
will  annexed,  and  to  all  the  legatees  and  devisees  men- 
tioned in  th3  will,  and  heirs  residing  in  the  state,  so  far 
as  known  to  the  petitioner;  or  to  their  guardians,  if  any 
of  them  are  minors;  or  to  their  personal  representatives, 
if  any  of  them  are  dead;  requiring  them  to  appear  before 
the  court  on  some  day  of  a  regular  term,  therein  specified, 
to  show  cause  why  th«  probate  of  the  will  should  not  be 
revoked.    En.  March  11,  1872.    Am'd.  1873-4,  358. 

Cal.  Rep.  Cit     63,  8;   102,  94;   116,  451;    116,  452. 

Prob.  Act,  see.  31.  En.  April  22,  1850.  Rep.  1851,  48U. 
En.  1851,  448. 

Cal.    Rep.    Cit.     37,    4J6. 

Citation:  Post,  sees.  1707-1711. 

Guardians:  Post,  sees.  1722,  1747  et  seq. 

§  1329.     The    hearing    had    on    proof   of  service.     At   the 

time  appointed  for  showing  cause,  or  at  any  time  to  which 
the  hearing  is  postponed,  personal  service  of  the  citations 
having  been  made  upon  any  persons  named  therein,  the 
court  must  proceed  to  try  the  issues  of  fact  joined  in  the 
same  manner  as  an  original  contest  of  a  will.  En.  March 
11.   1872. 

Cal.   Rep.   Cit.     116,   447;    138,   440. 

Prob.  Act,  sec.  32.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 


£05  PROBATE    OF    WILLS.  5§  1330-1332 

Proof  of  notice:   Ante,   sec.   1306. 

Trial  of  the  issues  joined:   Ante,  sec.  1312. 

§  1330.  Petitions  to  revoke  probate  of  will  tried  by  jury 
or  court.  Judgment,  winat.  In  all  cases  of  petitions  to  re- 
voke the  probate  of  a  will,  wherein  the  original  probate 
v/as  granted  without  a  contest,  on  written  demand  of  either 
party,  filed  three  days  prior  to  the  hearing,  a  trial  by  jury 
must  be  had  as  in  cases  of  the  contest  of  an  original  peti- 
tion to  admit  a  will  to  probate.  If,  upon  hearing  the 
proofs  of  the  parties,  the  jury  shall  find,  or  if  no  jury  is 
had,  the  court  shall  decide,  that  the  will  is  for  any  reason 
invalid,  or  that  it  is  not  sufficiently  proved  to  be  the  last 
will  of  the  testator,  the  probate  must  be  annulled  and  re- 
voked.    En.  March  30,  1872. 

Cal.  Rep.  Cit.     73,  657;   106,  495;   147,  194. 

Prob.  Act,  sec.  33.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Jury,  trial   by:  Ante,   sees.   1313,   1314. 


§  1331.  On  revocation  of  probate,  powers  of  executor, 
etc.,  cease,  but  not  liable  for  acts  in  good  faith.  Upon  the 
revocation  being  made,  the  powers  of  the  executor  or  ad- 
ministrator with  the  will  annexed  must  cease;  but  such 
executor  or  administrator  shall  not  be  liable  for  any  act 
done  in  good  faith  previous  to  the  revocation.  En.  March 
11,   1872. 

Cal.    Rep.    Cit     65,   334;    73,    557. 

Prob.  Act,  sec.  34.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Acts   before   revocation,   valid:   Post,    sec.    1428. 

§  1332.  Costs  and  expenses,  by  whom  paid.  The  fees 
and  expenses  must  be  paid  by  the  party  contesting  the 
validity  or  probate  of  the  will,  if  the  will  in  probate  is 
confirmed.  If  the  probate  is  revoked,  the  costs  must  be 
paid  by  the  party  who  resisted  the  revocation,  or  out  of 
the  property  of  the  decedent,  as  the  court  directs.  En. 
March  11,  1872. 

Cal.  Rep.  Cit     93,  572;    112,  452;    112,   454;    120,   452. 

Prob.  Act,  sec.  35.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  630. 

Costs,  generally:  Ante,  sees.  1021  et  seq. 


§§  1333-1239  PROnATE  OF   WILLS.  MJfi 

§  1333.  Probate,  when  conclusive.  One  year  after  re- 
moval of  disability  given  to  infants  and  others.  If  no 
person,  within  one  yoar  after  the  probate  of  a  will,  contest 
the  same  or  the  validity  thereof,  the  probate  of  the  will  is 
conclusive;  saving  to  infants  and  persons  of  unsound  mind 
a  like  period  of  one  year  after  their  respective  disabilities 
lire   removed.     En.    March    11,   1872.     Am'd.   1873-4,    358. 

Cal.  Rep.  Clt.  51,  5G9;  52.  95;  63,  6;  74,  385;  77,  314: 
100,  250;   101,  670;   136,  594. 

Prob.  Act,  sec.  36.  En.  April  22,  1850.  Rep.  ISfjl,  489. 
En.  1851,  448. 

Cal.   Rep.   Clt.     id,  272. 

Conclusiveness  cf  probate:  Post,  sec.  1908,  subd.  1;  see, 
also,  sec.  1327,  aiite. 


AR'I'lCLE   V. 

FROBATE    OF    LOST    OR    DESTROYED    WILii. 

§  1S38.     Proof   of   lost  or  destroyed    will    to   be    taken. 
5  1339.     Must   have   been    In   existence   at   time   of   death. 
S  1340.     To   be  certlfled,    recorded,    and   letters   thereon   granted. 
g  1J41.     Court    to   restrain    Injurious   acts    of   executors   or   administrators 
during  proceedings  to  prove  lost  will. 

§  1338.  Proof  of  lost  or  destroyed  will  i^^  be  taken. 
Whenever  any  will  Is  lost  or  destroyed,  the  superior  court 
must  take  proof  of  the  execution  and  validity  thereof,  and 
establish  the  same;  notice  to  all  persons  interested  be- 
ing first  given,  as  prescribed  in  regard  to  proofs  of  wills 
in  other  cases.  All  the  testimony  given  must  be  reduced 
to  writing,  and  signed  by  the  witnesses.  En.  March  11, 
1872.     Am'd.   1880,   78. 

CaL    Rep.    Cit     98,    97. 

Prob.  Act,  sec  37.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,   448. 

Notice  to  all  persons  Interested:  Ante,  sees.  1303,  1304; 
by  citation:  Post,  sees.  1707-1711;  service  of  papers: 
Ante,  sees.  1010  et  seq. 

§  1339.  Must  have  been  in  existence  at  time  of  death. 
No  will  shall  be  proved  as  a  lost  or  destroyed  will,  un- 
less the  same  is  proved  to  have  been  in  existence  at  the 


607  PROBATE    OF    WILLS.  SJ   1340,   1341 

time  of  the  death  of  the  testator,  or  is  shown  to  have  been 
fraudulently  destroyed  in  the  lifetime  of  the  testator,  nor 
unless  its  provisions  are  clearly  and  distinctly  proved  by 
at  least  two  credible  witnesses.  En.  March  11,  1872. 
Cal.  Rep.  Cit.  57,  283;  66,  4S9;  66,  490;  66,  491;  98  93- 
98,   94;    98,    102;    134,   235;    134,    663. 

Prob.  Act,  sec.  38.  En.  April  22,  1850.  Rep.  1851  489. 
En.   1851,  448. 

§  1340.  To  be  certified,  recorded,  and  letters  thereon 
granted.  When  a  lost  will  is  established,  the  provisions 
thereof  must  be  distinctly  stated  and  certified  by  the 
judge,  under  his  hand  and  the  seal  of  the  court,  and  the 
certificate  must  be  filed  and  recorded  as  other  wills  are 
filed  and  recorded,  and  letters  testamentary  or  of  adminis- 
tration, with  the  will  annexed,  must  be  issued  thereon 
in  the  same  manner  as  upon  wills  produced  and  duly 
proved.  The  testimony  must  be  reduced  to  writing, 
signed,  certified,  and  filed  as  in  other  cases,  and  shall  have 
the  same  effect  as  evidence  as  provided  in  section  one 
thousand  three  hundred  and  sixteen.  En.  March  11  1872 
Am'd.  1873-4,  358;    1880,  78. 

Prob.   Act,   sec.   39.     En.   April   22,   1850.     Rep.   1851.   489. 

En.   1851,  448. 

Certificate:  Ante,    sees.    1317,    1318. 

Letters  testamentary,  etc:   Post,  sees.  1349-1362. 

§  1341.  Court  to  restrain  injurious  acts  of  executors  or 
administrators  during  proceedings  to  prove  lost  will.  If 
before,  or  during  the  pendency  of  an  application  to  prove 
a  lost  or  destroyed  will,  letters  of  administration  are 
granted  on  the  estate  of  the  testator,  or  letters  testa- 
mentary of  any  previous  will  of  the  testator  are  granted, 
the  court  may  restrain  the  administrators  or  executors  so 
appointed  from  any  acts  or  proceedings  which  would  be 
injurious  to  the  legatees  or  devisees  claiming  under  the 
lost  or  destroyed  will.     En.  March  11,  1872. 

Prob.  Act,  sec.  40.  En.  April  22,  1850.  Rep.  1851.  489. 
En.  1851,  448. 


{S  1344-1X46  PliOUATK    Olf    WIL,l-,3. 


ARTICLE    VL 

PROBATE    OF    NUNCUPATIVE   WTL.I>g. 

5  1344.     Nuncupative   wills,   when  and  how  admitted   to  probate. 
§  1345.     Ailditional    requirenienta    In    probate   of   nuncupative    wills. 
§  1346.    Contests  and  appointments  to  conform  to  provisions  as  to  other 
wills. 

§  1344.  Nuncupative  wills,  when  and  how  admitted  to 
probate.  Nuncupative  wills  may  at  any  time,  within  six 
months  after  the  testamentary  words  are  spoken  by  the 
decedent,  be  admitted  to  probate,  on  petition  and  notice 
as  provided  in  article  one,  chapter  two,  of  this  title.  The 
petition,  in  addition  to  the  jurisdictional  facts,  must  al- 
lege that  the  testamentary  words  or  the  substance 
thereof  were  reduced  to  writing  within  thirty  days  after 
they  were  spoken,  which  writing  must  accompany  the 
petition.     En.  March  11,  1872. 

Nuncupative  wills:    Civ.  Code,  sees.  1288-1291. 

Petition,  notice  and  proof:    Ante,  sees.  1298-1309. 

§  1345.  Additional  requirements  in  probate  or  nuncupa- 
tive wills.  The  superior  court  must  not  receive  or  enter- 
tain a  petition  for  the  probate  of  a  nuncupative  will  until 
the  lapse  of  ten  days  from  the  death  of  the  testator,  nor 
must  such  petition  at  any  time  be  acted  on  until  the  tes- 
tamentary words  are,  or  their  substance  is,  reduced  to 
writing  and  file-d  with  the  petition,  nor  until  the  surviving 
husband  or  wife  (if  any),  and  all  other  persons  resident 
in  the  state  or  county  interested  in  the  estate,  are  noti- 
fied as  hereinbefore  provided.  En.  March  11,  1872.  Am'd. 
1880,  79. 

§  1346.  Contests  and  appointments  to  conform  to  provi- 
sions as  to  other  wills.  Contests  of  the  probate  of  nuncu- 
pative wills,  and  appointments  of  executors  and  adminis- 
trators of  the  estate  devised  thereby,  must  be  had,  con- 
ducted, and  made  as  hereinbefore  provided  in  cases  of 
the  probate   of  written  wills.     En.    March   11,   1872. 

Probate  contests:   Ante,  sees.  1312  et  seq.,   1327  et  seq. 

Contesting  appointment  of  executors,  etc.:  Post,  sees. 
1351,  1374. 


U)»  EXECUTORS.    ETC.  S  1318 


CHAPTER  III. 

OP      EXECUTOnS      AND      ADMINISTRATORS,      THEIR      LETTERS, 
BONDS,    REMOVALS,    AND    SUSPENSIONS. 

Article  I.    Letters   Testamentai-y  an'd   of  Administration,    With   the  Will 
Annexed,    How  and   to   Whom   Issued,    §§    1348-1356. 
n.     Form   of   Letters,    §§    1360-1362. 
III.    Letters    of    Administration,     to    WJiom,     and    the    Order    In 

Which   They   are    Granted,    §§    1365-1370. 
rv.    Petition    and    Contest    for    Letters,    and    Action    Thereon,    §§ 

1371-1379. 
v.    Revocation    of    Letters    and    Proceedings    Therefor,     §§    1383- 

1386. 
VI.    Oath;;  and   Bonds  of  Executors  and   Administrators,    §5    13ii7- 

1107. 
VTI.     Special    Administrators    and    Their    Powers    and    Duties,     §§ 
1411-1417. 
VTII.    Will.^    Fciiind    After    Letters    of    Administration    Granted,     §§ 
1423-1429. 
IX.     Disqualification   of  Judges  and   Ti'ansfers   of  Administrations, 

§§  1430-14.33. 
X.    Removals  and  Suspensions  In   Certain  Cases,    §§    1436-1440. 


ARTICLE  I. 

LETTERS     TESTAMENTARY     AND     OF    ADMINISTRATION,     WITH 
THE    WILL    ANNEXED,    HOW    AND    TO    WHOM    ISSUED. 

§  1348,     Corporations   as   executors. 

§  1349.    To   whom   letters  on   proved   will   to   Issue. 

§  1350.     Who    are    Incompetent    as    executors    or    admlnistratora.     Letters 

with  will  annexed  to  issue,   when. 
§  1351.     Interested    parties    may    file    objections. 
§  1352.     Married    woman    may    be    executrix. 
§  1353.     Executor   of  an   executor. 

§  1.354.     Letters   of   administration    where   minor  executor. 
§  1355.     Acts    of   a   portion    of   executors   valid. 
§  1356.    Authority    of    administrators    with    will    annexed.    Letters,    how 

Issued. 

§  1348.  Corporations  as  executors.  Corporations,  au- 
thorized by  their  articles  of  incorporation  to  act  as  execu- 
tor, administrator,  guardian  of  estates,  assignee,  receiver, 
depository,  or  trustee,  and  having  a  paid-up  capital  of  not 
les^i  than  two  hundred  and  fifty  thousand  dollai's,  or 
which  one  hundred  thousand  dollars  shall  have  been 
actually  paid  in  in  cash,  may  be  appointed  to  act  in  such 
capacity  in  like  manner  as  individuals.  In  all  cases  in 
which  It  is  required  that  an  executor,  administrator, 
guardian,    assignee,    receiver,  depository,  or  trustee,  shall 


§§  1310,  1350  EXECUTORS,     KTC.  810 

qualify  by  taking  and  subscribing  an  oath,  or  In  which  an 
affidavit  is  required,  It  shall  be  a  sufficient  qualification 
by  such  corporation,  If  such  oath  shall  be  taken  and  sub- 
scribed, or  such  affidavit  made,  by  the  president  or  secre- 
tary or  manager  thereof;  and  such  officer  shall  be  liable 
for  the  failure  of  such  corporation  to  perform  any  of  the 
duties  required  by  law  to  be  performed  by  individuals  act- 
ing In  like  capacity  and  subject  to  like  penalties;  and  such 
corporation  shall  be  liable  for  such  failure  to  the  full 
amount  of  Its  capital  stock  and  upon  the  bond  required 
upon  Its  assuming  the  trusts  provided  for  herein.  En. 
Stats.  1887,  21. 

Act  allowing  corporation  to  act  as  executor:  See  Civ. 
Code,  Appendix,  title  Corporations. 

§  1349.  To  whom  letters  on  proved  will  to  Issue.  The' 
court  admitting  a  will  to  probate,  after  the  same  is  proved 
and  allowed,  must  issue  letters  thereon  to  the  persons 
named  therein  as  executors  who  are  competent  to  discharge 
the  trust,  who  must  appear  and  qualify,  unless  objection  Is 
made  as  provided  in  section  thirteen  hundred  and  fifty- 
one.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     88,  308;    120,  346. 

Prob.  Act,  sec.  41.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Clt.     22,  66. 

Letters  testamentary,  form  of:   Post,  sec.  1360. 
Qualifications  of  executors:   Post,  sees.  1387-1407;  powers 
before:   Civ.  Code,  sec.  1373. 

§  1350.  Who  are  Incompetent  as  executors  or  adminis- 
trators. Letters  with  will  annexed  to  issue,  when.  No 
person  is  competent  to  serve  as  executor  who,  at  the  time 
the  will  Is  admitted  to  probate,  is: 

1.  Under  the  ag-e  of  majority. 

2.  Convicted  of  an  infamous  crime. 

8.  'Adjudged  by  the  court  Incompetent  to  execute  the 
duties  of  the  trust  by  reason  of  drunkenness,  Improvidence, 
or  want  of  understanding  or  Integrity. 

If  the  sole  executor  or  all  the  executors  are  Incompetent, 
or  renounce,  or  fail  to  apply  for  letters,  or  to  appear  and 
qualify,   letters  of  administration,   with   the  will   annexed, 


,511  EXECUTORS,    ETC.  §§  1351-135S 

must  be  )ssued  as  designated  and  provided  for  the  grant  of 
letters  in  cases  of  intestacy.  En.  March  11,  1872.  Am'd. 
1877-8,   111. 

Cal.  Rep.  Cit.  70,  344;  74,  340;  80,  383;  88,  307;  88, 
808;  88,  312;  108,  488;  108,  489;  118,  279;  120,  343; 
120,  346;  122,  381;  125,  307;  132,  403;  141,  541; 
141,   542.     Subd.   3—118,   278. 

Prob.  Act,  sec.  42.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  18G1,  631. 

Cal.  Rep.  Clt.   32,  441. 

Incompetent  to  serve  as  executors,  minor:  Post,  sec.  1354. 

Some  of  executors  unable  to  act:   Post,  sec.  1354. 

Marriage,  as  affecting  competency:   Post,  sec.  1352. 

Letters  of  administration  with  will  annexed:  Post,  sec. 
1356. 

§•1351.  Interested  parties  may  file  objections.  Any  per- 
son Interested  in  a  will  may  file  objections  in  writing,  to 
granting  lettters  testamentary  to  the  persons  named  as 
executors,  or  any  of  them;  and  the  objections  must  be 
heard  and  determined  by  the  court.  A  petition  may,  at 
the  same  time,  be  filed  for  letters  of  administration  with 
the  will  annexed.     En.   March  11,  1872. 

Cal.  Rep.  Clt.     88,  308;    93,  620;    98,  554. 

Prob.  Act,  sec.  43.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861.  631. 

Letters  of  administration  with  will  annexed:  Post,  sec. 
1356. 

§  1352.  Married  woman  may  be  executrix.  A  married 
woman  may  be  appointed  an  executrix.  The  auchority  of 
an  executrix  who  was  unmarried  when  appointed  is  not 
extinguished  nor  affected  by  her  marriage.  En.  March  11, 
1872.     Am'd.  1891,  136. 

Cal.  Rep.  Clt.     70,  844;    78,  584. 

Prob.  Act,  sec.  44.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  631. 

Cal.  Rep.  Cit.  18,  20. 

Married  woman,  may  be  administratrix:   Post,  sec.  1870 

§  1353.  Executor  of  an  executor.  No  executor  of  an  ex- 
ecutor shall,  as  such,  be  authorized  to  administer  on  thft 
estate  of  the  first  testator,  but  on  the  deaili  of  the  sole  or 


SS  18S4,  1858  EXECUTORS,    ETO,  lU 

surviving  executor  of  any  last  will,  letters  of  administra- 
tion with  the  will  annexed,  of  the  estate  of  the  first  tes- 
tator, left  unadmlnlstered,  must  be  Issued.  En.  March  11, 
1872. 

CaJ.  Rep.  Cit.    184,  486. 

Prob.  Act,  sec.  45.  Bn.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Letters  of  administration  with  will  annexed:  Post,  eeo. 
1856. 

8  1354.     Letters  of  administration  where  minor  executor. 

Where  a  person  absent  from  the  state,  or  a  minor,  is  named 
executor — If  there  Is  another  executor  who  accepts  the 
trust  and  qualifies — the  latter  may  have  letters  testamen- 
tary and  administer  the  estate  until  the  return  of  the 
absentee  or  the  majority  of  the  minor,  who  may  theji  be 
admitted  as  Joint  executor.  If  there  Is  no  other  executor, 
letters  of  administration  with  the  will  annexed  must  be 
granted;  but  the  court  may.  In  Its  discretion,  revoke  them 
on  the  return  of  the  absent  executor,  or  the  arrival  of  the 
minor  at  the  age  of  majority.    En.  March  11,  1872. 

Cal.  Rep.  Clt    80,  884;  80,  885;  108,  488;  108,  489;  122,  882. 
Prob.   Act,  sea   46.    En.   April  22,  1850.     Rep.   1851,  489. 
En.  1851,  448. 

§  1355.  Acts  of  a  portion  of  executors  valid.  When  all 
the  executors  named  are  not  appointed  by  the  court,  those 
appointed  have  the  same  authority  to  perform  all  acts  and 
discharge  the  trust,  required  by  the  will,  as  effectually  for 
every  purpose  as  if  all  were  appointed  and  should  act  to- 
gether; where  there  are  two  executors  or  administrators, 
the  act  of  one  alone  shall  be  effectual,  if  the  other  is  absent 
from  the  state,  or  laboring  under  any  legal  disability  from 
serving,  or  if  he  has  given  his  coexecutor  or  coadministrator 
authority  in  writing,  to  act  for  both;  and  where  there  are 
more  than  two  executors  or  administrators,  the  act  of  a 
majority  is  valid.     En.  March  11,  1872. 

Cal.  Rep.  Clt    54,  806. 

Prob.  Act,  sec.  47.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851.     Am'd.  1861,  631. 

Remainder  of  executors  acting,  where  some  incapaci- 
tated, etc:  Post,  sec.  1425. 


ni3  EXECUTORS,    ETC.  55  1356.  136.1 

Joint  authority:  Ante,  sec.  15. 

Authority  of  executors,  before  qualifying:  Civ.  Ck)de,  sec. 
1373;  before  letters  reToked:  Post,  sec.  1428;  powers,  etc, 
generally:  Post,  sees.  1581  et  seq.;  foreign  executor:  Post, 
sec.  1913. 

Revocation  of  probate,  effect  of:  Ante,  sec.  1331. 

Removals  and  suspensions:  Post,  sees.  1438  et  seq. 

§  1356.  Authority  of  administrators  v>/lth  will  annexed. 
Letters,  how  issued.  Administrators  with  the  v/ill  annexed 
have  the  same  authority  over  the  estates  wtuch  executors 
named  in  the  will  would  have,  and  their  acts  are  as  effec- 
tual for  all  purposes.  Their  letters  must  be  signed  by  the 
clerk  of  the  court,  and  bear  the  seal  thereof.  En.  March  11, 
1872. 

Prob.  Act,  sec.  48.  En.  April  22,  1850.  Rep,  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     32,  441. 

Prob.  Act,  sec.  49.  En.  April  22,  ]?,f>0.  Rep.  1851,  489. 
En.  1851,  448. 

Executor  of  execntor:  Ante,  sec.  1353. 


AUTICLE  II. 

FORM   OF   LETTERS. 

§  1360.    Form  of  letters  testamentary. 

§  1361.     Form    of    letters    of    administration    with    the    will    annexed. 

§  1362.     Form   of  letters   of  administration. 

§  1360.  Form  of  letters  testamentary.  Letters  testa- 
mentary must  be  substantially  in  the  following  form:  State 

of  California,  county,  or  city  and  county  of  .    The  last 

v/ill  of  A.  B.,  deceased,  a  copy  of  which  is  hereto  annexed, 
having  been  proved  and  r'ecorded  in  the  superior  court  of 

the  county,  or  city  and  county,  of ,  C.  D.,  who  is  named 

therein  as  such,  is  hereby  appointed  executor.  Witness,  G. 
H.,  clerk  of  the  superior  court  of  the  county,  or  city  and 

county,  of  ,  with  the  seal  of  the  court  affixed,  the 

day  of  ,  A.   D.   18 — .     (Seal.)     By  order  of  the  court 

G.  H.,  clerk.     En.  March  11,  1872.     Am'd.  1880,  79. 

Prob.  Act,  sec.  50.  En.  April  22,  1850.  Rep  1851,  489. 
En.  1851,  448. 

Seal,  required:  Ante,  sec.  153,  subd.  2;  of  courts,  gener- 
ally: Ante,  sees.  147-153. 

Code    Civil    Proc— 33. 


§§  13«l.  1362  EXECUTORS,    ETC.  5'4 

§  1361.  Form  of  letters  of  administration  with  the  will 
annexed.  Letters  of  administration,  with  the  will  annexed, 
must  be  substantially  in  the  following  form:  State  of  Cali- 
fornia, county,  [or  city  and  county],  of .     The  last  will 

of  A.  B.,  deceased,  a  copy  of  which  is  hereto  annexed,  hav- 
ing been  proved  and  recorded  in  the  superior  court  of  the 

county,  or   city   an-d   county,   of  ,  and   there   being  no 

executor  named  in  the  will  (or  as  the  case  may  be),  C.  D. 
is  hereby  appointed  administrator  with  the  will  annexed. 
Witness,  G.  H.,  clerk  of  the  superior  court  of  the  county,  or 

city  and  county  of ,  with  the  seal  of  the  court  affixed, 

the  day  of  ,  A.  D.  18—,     (Seal.)     By  order  of  the 

court     G.  H.,  clerk.    En.   March  11,  1872.     Aan'd.  1880,  79. 

Prob.  Act,  sec.  5L  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1362.  Form  of  letters  of  administration.  Letters  of 
ad,ministration  must  be  signed  by  the  clerk,  under  the  seal 
of  the  court,  and  substantially  in  the  following  form:  State 

of  California,  county,  or  city  and  county,  of .     C.  D.  is 

hereby  appointed  administrator  of  the  estate  of  A.  B.,  de- 
ceased.    (Seal.)     Witness,  G.  H.,  clerk  of  the  superior  court 

of  the  county,  or  city  an-d  county,  of  ,  with  the  seal 

thereof  affixed,  the  day  of   ,  A.  D.  18 — .     By  order 

of  the  court.  G.  H.,  clerk.  En.  March  11,  1872.  Am'd. 
1880,  79. 

Oal.  Rep.  Cit.     64,  10;  122,  41. 

Prob.  Act,  sec.  71.  En.  April  22.  1850.  Rep.  1851,  489. 
En.  1851,  448. 


515  EXECUTORS,    EXa  i  13'i5 


ARTICLE  III. 

LETTERS    OF    ADMINISTRATION,    TO    "WHOM    AND    THE    ORDER 
IN    WHICH    THEY    ARE    GRANTED. 

5  1365.  Order  of  persona  entitled  to  administer.  Partner  not  to  admin- 
ister. 

§  1366.     Preference   of  persons   equally  entitled. 

§  1367.     In   discretion   of  court   to  appoint  administrator,    when. 

5  1368.  When  minor  or  incompetent  entitled,  who  appointed  admin- 
istrator. 

§  1369.    WTio   are  incompetent  to  act  aa  administrators. 

§  1370.     Married   woman   may   be   administratrix. 

§  1365.  Order  of  persons  entitled  to  administer.  Part- 
ner not  to  administer.  Administration  of  the  estate  of  a 
person  dying  Intestate  must  be  granted  to  some  one  or 
more  of  the  persons  hereinafter  mentioned,  the  relatives  of 
the  deceased  being  entitled  to  administer  only  when  they 
are  entitled  to  succeed  to  his  personal  estate,  or  some  por-' 
tion  thereof;  and  they  are,  re.specti7ely,  entitled  thereto  in 
the  following  order: 

1.  The  surviving  husband  or  wife,  or  some  competent  per- 
son whom  he  or  she  may  request  to  have  appointed. 

2.  The  children. 

3.  The  father  or  mother. 

4.  The  brothers. 

5.  The  sisters. 

6.  The  grandchildren. 

7.  The  next  of  kin  entitled  to  share  In  the  distribution  of 
the  estate. 

8.  The  public  administrator. 

9.  The  creditors. 

10.  Any  person  legally  competent. 

If  the  decedent  was  a  member  of  a  partnership  at  the 

time  of  Ills  decease,  the  surviving  partner  must  in  no  case 

be  appointed   administrator  of  his   estate.    En.   March  11, 

1872.     Am'd.  1875-6,  102;   1877-8,  111. 

Cal.  Rep.  Cit.     46,  574;   52,  539;   54.  216;  54,  217;   56,  420; 

57,    82;    64,    227;    65,    209;    72,    165;    72   166;    74,    340; 

74,   341;    76,   297;    88,   620;    93,   612;    97,  340;    97,   341; 

97,  342;   97,  428;   97,  429;   100,     80;   103,  588;   106,  455; 

108,  488;  110,  410;  114,  465;  118,278;  118,279;  127,661; 

127,  662;   135,  8;  136,  111;   136,  113;   141,  542;   143,  442; 

143,    445;    143,    446;    143,    608;    146,    593.     Subd.    1—78, 

585;    120,  346;    120,  349;    122,  163;    122,  164;    122,  165; 

132,  309.     Subd.   2—132,  402;    132,  403.     Subd.  4—143, 


SS  13C6-13G8  EXECUTORS,    ETC.  61B 

440.     Subtl.   7— 13C,   112.     Subd.   8—120,   343;    122,  1C3. 
Subd.   10—53,   245. 
Prob.  Act,   sec.   52.     En.  April  22,  1850.     Rep.   1851,   489. 
En.  1851,  448.     Am'd.  1855,  133;    1861,  631;    1864,  522. 

Cal.  Rep.  Cit.     7,  232;    7,  230;    16,  165;    16,  367;    16,  164; 

17,  536;    25,  515;    34,  468. 
Public  administrators,  generally:   Post,  sees.  1726  et  seq. 
Incompetent  persons:   Post,  sees.  1369,  1370. 
Recommendation    by    one    entitled    to    administer:  Post, 
sec.  1379. 

§  1366.  Preference  of  persons  equally  entitled.  Of  sev- 
eral persons  claiming  and  equally  entitled  to  administer, 
males  must  be  preferred  to  females,  and  relatives  of  the 
whole  to  those  of  the  half  blood.     En.   March  11,  1872. 

Cal.  Rep.  Cit.     132,  402;   141,  542. 

Prob.  Act,  sec.  53.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,   448. 

§  1367.  In  discretion  of  court  to  appoint  administrator, 
when.  When  there  arc  several  persons  equally  entitled  to 
the  administration,  the  court  may  grant  letiers  to  one  or 
more  of  them;  and  when  a  creditor  is  claiming  letters,  the 
court  may,  in  its  discretion,  at  the  request  of  another  cred- 
itor, grant  letters  to  any  other  person  legally  competent. 
En.  March  11,  1872. 

Cal.  Rep,  Cit  46,  574;  132,  402;  143,  440;  143,  443;  143, 
445;    143,   446. 

Prob.  Act,  sec.  54.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.    Am'd.  1864,  368. 

§  1368.  When  minor  or  incompetent  entitled,  who  ap- 
pointed administrator.  If  any  person  entitled  to  adminis- 
tration is  a  minor  or  an  incompetent  person,  letters  must 
be  granted  to  his  or  her  guardian,  or  any  other  person 
entitled  to  letters  of  administration,  in  the  discretion  of 
the  court.     En.  March  11,  1872.     Am'd.  1893,  52. 

Cal.  Rep.  Cit.  80,  384;  97,  429;  103,  430;  143,  439;  143, 
440;    143,  441;    143,  443;    143,  444;    143,  445;    143,  446. 

Prob.  Act,  sec.  57.  En.  April  22,  1850.  Rep.  1851,  48'J. 
En.  1851,  448.     Am'd.  1870,  637. 

Guardian  of  minor:  Ante,  sees.  372,  373,  post,  sees, 
1747.    1759. 


BIT  EXECUTORS,     ICTC.  §§  1363-1371 

§  1369.  Who  are  incompetent  to  act  as  administrators. 
No  person  is  competent  or  entitled  to  serve,  as  adminls- 
txator  or  administratrix  who  is: 

1.  Under  the  age  of  majority. 

2.  Not  a  bona  Sde  resident  of  the  state. 

3.  Convicted  of  an  infamous  crime. 

4.  Adjudged  by  the  court  incompetent  to  execute  the 
duties  of  the  trust  by  reason  of  drunkenness,  improvidence, 
or  want  of  understanding  or  integrity.  En.  March  11,  1872. 
Am'd.  1877-8,  112. 

Cal.  Rep.  Cit.     54,  216;  54,  217;   63,  459;   63,  460;   64,  228; 

72,  165;    80,   383;    88,  620;    93,  612;    97,  429;    103,  587; 

104,  624;  110,  410;  142,  130;  142,  131;  142,  132;  142,  133; 

143,  440;    143,  441;    143,   445.     Subd.   2—120,   638;    122, 

381. 
Prob.   Act,   sec.   55.     En.   April   22,   1850.     Rep.   1851,   489. 
En.  1851,  448.     Am'd.  1861,  632. 
Revoking  letters:   See  sec.   1383,  post. 

§  1370.  Married  woman  may  be  administratrix.  A  mar- 
ried woman  may  be  appointed  administratrix.  When  an 
unmarried  woman  appointed  administratrix  marries,  her 
authority  is  not  thereby  extinguished.  En.  March  11,  1872. 
Am'd.   1891,  11. 

Cal.  Rep.  Cit.     132,  310;   132,  311. 

Prob.  Act,  sec.  56.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.   1866,   765;    1870,   636;    1872,  94. 

Married  woman  as  executrix:  Ante,  sec  1352. 


ARTICLE   IV. 

PETITION  AND   CONTEST   FOR   LETTERS,    AND    ACTION   THERE- 
ON. 

§  1.771.  AppUcations,    how   made. 

§  1H72.  V.'hen   granted. 

§  1373.  Clerk  of  court  must  set  day  for  bearing.    Notice  of  appUcation. 

I  1374.  Contesting   application. 

§  1375.  Hearing   of   application. 

§  1376.  Evidence   of   notice. 

§  1377.  Grant   to  any   applicant, 

§  1378.  Wliat   proofs  must  be  made  before  granting  letters  of  adminis- 
tration. 

S  1379.  Letters   may  be   granted   to  others  than   those  entitled. 

§  1371.     Applications,    how    made.     Petitions    for    lotters 
of  administration  must  be  in  writing,  signed  by  the  appli- 


85  1372-1374  EXECUTORS,    ETC.  518 

cant  or  his  counsel,  and  filed  with  the  clerk  of  the  court, 
stating  the  facts  essential  to  give  the  court  jurisdiction  of 
the  case,  and  when  known  to  the  applicant,  he  must  state 
the  names,  ages,  and  residence  of  the  heirs  of  the  decedent, 
and  the  value  and  character  of  the  propertj'.  If  the  juris- 
dictional facts  existed,  but  are  not  fully  set  forth  in  the 
petition,  and  are  afterward  proved  in  the  course  of  ad- 
ministration, the  decree  or  order  of  administration  and 
subsequent  proceedings  are  not  void  on  account  of  such 
want  of  jurisdictional   averments.     En.   March   11,   1872. 

Cal.  Rep.  Cit.     71,  522;  76,  297;  100,  80. 

Prob.  Act,  sec.  58.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  632. 

Orders  and  decrees  need  not  recite  the  facts:  Post,  sec. 
1704. 

§  1372.  When  granted.  Letters  of  administration  may 
be  granted  by  the  court  at  any  time  appointed  for  the 
hearing  of  the  application,  or  at  any  time  to  which  the 
hearing  is  continued  or  postponed.  En.  March  11,  1872. 
Am'd.   1880,  79. 

Prob.  Act,  sec.  59.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,   448. 

§  1373.  Clerk  of  court  must  set  day  for  hearing.  Notice 
of  application.  "^Tien  a  petition  praying  for  letters  of  ad- 
ministration is  filed,  the  clerk  of  the  court  must  set  the 
petition  for  hearing  by  the  court,  and  give  notice  thereof 
by  causing  notices  to  be  posted  in  at  least  three  public 
places  in  the  county,  one  of  which  must  be  at  the  place 
where  the  court  is  held,  containing  the  name  of  the  deced- 
ent, the  name  of  the  applicant,  and  the  time  at  which  the 
application  will  be  heard".  Such  notice  must  be  given  at 
least  ten  days  before  the  hearing.  En.  March  11,  1872. 
Am'd.  1880,  80;    1891,  427. 

Cal.  Rep.  Cit.    84,  109;   105,  182;   142,  552. 

Prob.  Act,  sec.  60.    En.  April  22,   1850.    Rep.  1851,  489. 
En.   1851,   448. 
Posting  notices:  Compare,  ante,   sec.   1303. 

§  1374.  Contesting  application.  Any  person  interested 
may  contest  the  petition,  by  filing  written  opposition  there- 


519  EXECUTORS,    ETC.  5§  1375-13T7 

to,  on  the  ground  of  the  incompetency  of  the  applicant,  or 
may  assert  his  own  fights  to  the  administration,  and  pray 
that  letters  be  issued  to  himself.  In  the  latter  case  the 
contestant  must  file  a  petition,  and  give  the  notice  required 
for  an  original  petition,  and  the  court  must  hear  the  two 
petitions  together.    En.   March   11,   1872. 

Cal.  Rep.  Cit.  98,  554;  100,  80;  122,  163;  142,  133;  142, 
552. 

Prob.  Act,  sec.  6L  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.   1861,   632. 

Cal.    Rep,   Cit.     28,   186. 

Incompetency  of  the  applicant:  Ante,   sec.  1369. 

Persons  entitled  to  administer:  Ante,  sec.  1365. 

§  1375.     Hearing  of  application.     On  the  hearing,  it  be- 
ing first  proved  that  notice  has  been  given  as  herein  re- 
quired, the  court  must  hear  the  allegations  and  proofs  of 
the  parties,  and  order  the  issuing  of  letters  of  administra- , 
tion  to  the  party  best  entitled  thereto.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     100,  80. 

Prob.  Act,  sec.  62.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  34,  468. 

Proof  of  notice:   Compare,  ante,  sec.   1306. 

Conclusive  evidence:  Post,   sec.   1376. 

§  1376.  Evidence  of  notice.  An  entry  in  the  minutes  of 
the  court,  that  the  required  proof  was  made  and  notice 
given,  shall  be  conclusive  evidence  of  the  fact  of  such 
notice.    En.  March  11,  1872. 

Prob.  Act,  sec.  63.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.   Cit.     7,  234;    7,  238. 

§  1377.  Grant  to  any  applicant.  Letters  of  administra- 
tion must  be  granted  to  any  applicant,  though  it  appears 
that  there  are  other  persons  having  better  rights  to  the 
administration,  when  such  persons  fail  to  appear  and  claim 
the  issuing  of  letters  to  themselves.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     56,  410;   120,  348. 

Prob.  Act,  sec.  64.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,   448. 

Cal.  Rep.  Cit     7,  23L 


5§  1378,  1379  EXECUTORS,    ETC.  620 

Other  persons  having  better  rights — May  procure  revoca- 
tion:   Post,  sees.  1283-1386. 


§  1378.  What  proofs  must  be  made  before  granting  let- 
ters of  administration.  Before  letters  of  administration 
are  granted  on  the  estate  of  any  person  who  is  represented 
to  have  died  intestate,  the  fact  of  his  dying  intestate  must 
be  proved  by  the  testimony  of  the  applicant  or  others;  and 
the  court  may  also  examine  any  other  person  concerning 
the  time,  place,  and  manner  of  his  death,  the  place  of  his 
residence  at  the  time,  the  value  and  character  of  his  prop- 
erty, and  whether  or  not  the  decedent  left  any  will,  and  may 
compel  any  person  to  attend  as  a  witness  for  that  purpose. 
En.  March  11,  1872. 

Prob.  Act,  sec.  65.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  632. 

Witness — Compelling  attendance  of:  Post,  sees.  1985  et 
seq. 

§  1379.  Letters  may  be  granted  to  others  than  those 
entitled.  Administration  may  be  granted  to  one  or  more 
competent  persons,  although  not  otherwise  entitled  to  the 
same,  at  the  written  request  of  the  person  entitled,  filed  in 
the  court.  When  the  person  entitled  is  a  nonresident  of 
the  state,  affidavits,  taken  ex  parte  before  any  officer 
authorized  by  the  laws  of  this  state  to  take  acknowledg- 
ments and  administer  oaths  out  of  this  state,  may  be 
received  as  prima  facie  evidence  of  the  identity  of  the 
party,  if  free  from  suspicion,  and  the  fact  is  established  to 
the  satisfaction  of  the  court  En.  March  11,  1872.  Am'd. 
1877-8,  112;  1880,  113. 

Cal.  Rep.  Cit.  53,  245;  54,  217;  56,  420;  57,  82;  63,  459; 
63,  460;  64,  228;  72,  166;  93,  613;  97,  340;  97,  341; 
97,  342;  97,  343;  97,  429;  104,  624;  120,  346;  122,  164; 
122,  165;   135,  8;    141,  541;   143,  445. 

Prob.  Act,  sec.  66.  En.  April  22,  IS.'^O.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  632. 

Cal.  Rep.  Cit.  16,  164;  16,  165;  28,  186. 

Proof  of  identity.— Affidavits:  Post,  sees.  2009-2015;  depo- 
sitions out  of  the  state:  Post,  sees.  2024-2028;  prima  facie 
evidence:   Post,  sec.  1833. 


521  EXECUTORS,    ETC.  SS  1383-1385 


ARTICLE  V. 

REVOCATION    OF   LETTERS    AND    PRQCEEDINGS    THEREFOR. 

§  1.1S3.  Revocation    of    letters    of   administration. 

§  loS4.  WTien   petition   filed,   citation   to  issue. 

§  1385.  Hearing  of  petition  for  revocation. 

§  13S6.  Prior  rights  of  relatives   entitles   them  to  revoke  prior  letters. 

§  1383.  Revocation  of  letters  of  administration.  When 
letters  of  administration  have  been  granted  to  any  other 
person  than  the  snrvivin'g  husband  or  wife,  child,  father, 
mother,  brother,  or  sister  of  the  intestate,  any  one  of  them 
who  is  competent,  or  any  competent  person  at  the  written 
request  of  any  one  of  them,  may  obtain  the  revocation  of 
the  letters,  and  be  entitled  to  the  administration,  by  pre- 
senting to  the  court  a  petition  praying  the  revocation,  and 
that  letters  of  administration  may  be  issued  to  him.  En. 
March  11,  1872.     Am'd.  1880,  80. 

Cal.  Rep.  Cit  56,  327;  72,  166;  84,  110;  88,  481;  97,  342; 
98,  535;  99,  375;  108,  487:  108,  488;  108,  489;  120,  349; 
122,  164;   142,  130;   147,  345. 

Prob.  Act,  sec.  67.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1870,  400. 

Cal.  Rep.  Cit  16,  165. 

Persons  Incompetent:  Ante,  sees.  1369,  1370. 

Revocation:   See  sees.  1386,  1436-1440,  post. 

§  1384.     When  petition    filed,    citation    to    Issue.    When 

such  petition  is  filed,  the  clerk  must,  in  ad-ditlon  to  the  no- 
tice provided  in  section  thirteen  hundred  and  seventy-three, 
issue  a  citation  to  the  administrator  to  appear  and  answer 
the  same  at  the  time  appointed  for  the  hexing.  En.  March 
11,  1872.     Am'd.  1873-4,  359. 

Cal.  Rep.  Cit  56,  327;  72,  24;  120,  S49;  120,  384. 

Prob.  Act,  sec  68.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  633. 

Citation — Generally:  Post,  sees.  1707-1711. 

§  1385.  Hearing  of  petition  for  revocation.  At  the  time 
appointed,  the  citation  having  been  duly  served  and  re- 
turned, the  court  must  proceed  to  hear  the  allegations  and 
proofs  of  the  parties;  and  if  the  right  of  the  applicant  is 
established,  and  he  is  competent,  letters  of  administration 


§§  1386,  13S7  EXECUTORS,    ETC.  622 

must  be  granted  to  him,  and  the  letters  of  the  former  ad- 
ministrator revoked.     En.  March  11,  1872. 
Cal.  Rep.  Cit.  56,  327;  120,  349;  142,  130. 

Prob.  Act,  sec.  69.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1386.  Prior  rights  of  relatives  entitles  them  to  revoke 
prior  letters.  The  surviving  husband  or  wife,  when  letters 
of  administration  have  been  granted  to  a  child,  father, 
brother,  or  sister  of  the  intestate;  or  any  of  such  relatives, 
when  letters  have  been  granted  to  any  otiier  of  them,  may 
assert  his  prior  right,  and  obtain  letters  of  administration, 
anti  have  the  letters  before  granted  revoked  in  the  manner 
prescribed  in  the  three  preceding  sctions.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.     56,  327;   120,  349;   132,  310. 

Prob.  Act,  sec.  70.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.    Am'd.  1870,  400. 


ARTICLE  VI. 

OATHS    AND    BONDS    OF    EXECUTORS    AND     ADMINISTRATORS. 

S  1387.    Administrator   or    executor   to    take    oath.    Letters    and    bond    to 
be   recorded. 

fl  1388.    Bon-d   of  administrators,    form  and  requirements  of. 

§  13S9.    Additional   bonds,    when   required. 

§  1390.     Conditions   of   bonds. 

§  1391.    Separate  bonds,    where  more   than  one  administrator. 

§  1392.     Several    recoveries    may    be    had    on    same    bond. 

§  1393.    Bonds,   and  JustiOcation   of  sureties  on.    Must  be  approved. 

§  1394.    Citation  and  requirements  of  judge  on  deficient  bond. 
Additional    security. 

5  13^    Rlgrht   ceases,    when   sufficient   security   not   given. 

§  1396.    When  bond   may  be  dispensed  with. 

§  1397.     Petition   showing  failing   sureties  and   asking   for   further   bonds. 

§  1398.    Citation    to   executor,    etc.,    to    show   cause    against    such    appli- 
cation. 

§  1309.    Further   security   may   be   ordered. 

§  1*00.    Neglecting  to  obey   order. 

§  1401.    Suspending  powers   of  executor,    etc. 

§  1402.    Further   security   ordered   without  application  of  party   la  inter- 
est. 

§  1403.    Release  of  sureties. 

I  1404.     New   sureties. 

I  14C5.    Neglect  to  give  new  sureties  forfeits  letters, 

§  1406.     Application    to   be  determined   any   time. 

S  1407.    Liability   on   bond. 

§  1387.     Administrator    or   executor   to    take   oath.     Let- 
ters and  bond  to  be  recorded.     Before  letters  testamentary 


628  EXECUTORS,    ETC.  §  ^^^^ 

or  of  administration  are  issued  to  tlie  executor  or  adminis- 
trator, lie  must  talce  and  subscribe  an  oath  before  some  of- 
ficer authorized  to  administer  oaths,  that  he  will  perform, 
according  to  law,  the  duties  of  executor  or  administrator, 
which  oath  must  be  attached  to  the  letters.  All  letters 
testamentary  and  of  administration  issued  to,  and  all  bonds 
executed  by,  executors  or  administrators,  with  the  affidavits 
and  certificates  thereon,  must  be  forthwith  recorded  by  the 
clerk  of  the  court  having  Jurisdiction  of  the  estates,  In 
books  to  be  kept  by  him  in  his  office  for  that  purpose.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  96,  593. 

Prob.  Act,  sec.  72.  En.  April  22,  1850.  Rep.  1851,  489 
En.  1851,  448.  Am'd.  1861.  663;  1863,  23. 

Cal.  Rep.  CIt.  84,  468;  34,  469. 

§  1388.     Bond  of  administrators,  form  and  requirements 

of.  Every  person  to  whom  letters  testamentary  or  of  ad- 
ministration are  directed  to  issue  must,  before  receiving 
them,  execute  a  bond  to  the  state  of  California,  with  two 
or  more  sufllcient  sureties,  to  be  approved  by  the  superior 
court,  or  a  jud'ge  thereof.  In  form,  the  bond  must  be  joint 
and  several,  and  the  penalty  must  not  be  less  than  twice 
the  value  of  the  personal  property,  and  twice  the  probable 
value  of  the  annual  rents,  profits,  and  issues  of  real  prop- 
erty belonging  to  the  estate,  which  values  must  be  ascer- 
tained by  the  superior  court,  or  a  Jud'ge  thereof,  by  exam- 
ining on  oath  the  party  applying,  and  any  other  persons. 
En.  March  11,  1872.     Am'd.  1880,  80. 

Cal.  Rep.  Cit.  101,  128;  112,  267;  127,  661;  127,  662. 

Prob.  Act,  sec.  78.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1864.  368. 

Sureties:  Post,  sees.  1393,  1394,  1397-1400,  1403,  1404,  1407. 

Approved  by  Judge,  at  chambers:  Ante,  sec.  166. 

Bond — condition  of:  Post,  sec.  1390;  separate,  when:  Post, 
sec.  1391;  recovery  on:  Post,  sees.  1392,  1407;  not  required, 
when:  Post,  sec.  1396;  further  security:  Post,  sees.  1889, 
1394-1402;  stands  as  undertaking  on  appeal:  Sec.  965. 

Bond,  reduction  of,  on  deposit  of  personal  securities  with 
certain  corporations:  See  act  of  April  6,  1891,,  Stats.  1891, 
p.  490,  sec.  4. 


8§  1389-1392  EXECUTORS,    ETC.  824 

§  1389.  Additional  bonds,  wlien  required.  The  superior 
court,  or  a  judge  thereof,  must  require  an  additional  bond 
whenever  the  sale  of  any  real  estate  belonging  to  an  estate 
Is  ordered;  but  no  such  additional  bond  must  be  required 
when  it  satisfactorily  appears  to  the  court  that  the  penalty 
of  the  bond  given  before  receiving  letters,  or  of  any  bond 
given  in  place  thereof,  is  equal  to  twice  the  value  of  the 
personal  property  remaining  in  or  that  will  come  into  the 
possession  of  the  executor  or  administrator,  including  the 
annual  rents,  profits,  and  issues  of  real  estate,  and  twice 
the  probable  amount  to  be  realized  on  the  sale  of  the  real 
estate  ordered  to  be  sold.  En.  March  11,  1872.  Am'd.  1880, 
80. 

Cal.  Rep.  Clt  50,  809;  123,  438. 

Additional  bond  may  be  required  of  public  administrator: 
Post,  sec  1727. 

§  1390.  Conditions  of  bonds.  The  bond  must  be  condi- 
tioned that  the  executor  or  administrator  shall  faithfully 
execute  the  duties  ot  the  trust  according  to  law.  En.  March 
11,  1872. 

Duties  of  the  trustee:  Post,  sees.  1581   et  seq. 

§  1391.  Separate  bonds,  where  more  than  one  adminis- 
trator. Wlien  two  or  more  persons  are  appointed  execu- 
tors or  administrators,  the  superior  court,  or  a  judge  there- 
of, must  require  and  take  a  separate  bond  from  each  of 
them.    En.  March  11,  1872.    Aon'd.  1880,  80. 

Cal.  Rep.  Git.  74,  213. 

Prob.  Act,  sec.  74.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1392.    Several  recoveries  may  be  had  on  same  bond. 

The  bond  shall  not  be  void  upon  the  first  recovery,  but 
may  be  sued  and  recovered  upon  from  time  to  time,  by 
any  person  aggrieved,  in  his  own  name,  until  the  whole 
penalty  is  exhausted.     En.  March  11,  1872. 

Prob.  Act,  sec.  75.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

In  his  own  name,  party  beneficially  Interested:  Ante,  neo. 
867. 

Kind  of  money,  payable  under  bond:  Post,  sec.  1407. 


626  EXECUTORS,    ETC.  §§  1393,  1394 

8  1393.  Bends,  and  justification  of  sureties  on.  Must 
be  approved.  In  all  cases  where  bonds  or  undertakings 
are  required  to  be  given,  under  this  title,  the  sureties  must 
justify  thereon  in  the  same  manner  and  in  like  amounts 
as  required  by  section  ten  hundred  and  fifty-seven  of  this 
code,  and  the  certificate  thereof  must  be  attached  to  and 
filed  and  recorded  with  the  bond  or  undertaking.  All  such 
bonds  and  undertakings  must  be  approved  by  a  Judge  of 
the  superior  court  before  being  filed  or  recorded.  En. 
March  11,  1872.     Am'd.  1880,  81. 

Prob.  Act,  sec.  76.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1855,  299;  1861,  633;  1862,  424;  1864, 
868. 

Approved  by  judge,  at  chambers:  Ante,  sec.  166. 

Examination  of  sureties,  when  qualifications  questioned: 
Post,  sec.  1394. 


§  1394.  Citation  and  requirements  of  judge  on  deficient 
bond.  Additional  security.  Before  the  judge  approves 
any  bond  required  under  this  title,  and  after  its  approval, 
he  may,  of  his  own  motion,  or  upon  the  motion  of  any  per- 
son Interested  In  the  estate,  supported  by  affidavit  that  the 
sureties,  or  some  one  or  more  of  them,  are  not  worth  as 
much  as  they  have  justified  to,  order  a  citation  to  issue 
requiring  such  sureties  to  appear  before  him  at  a  designated 
time  and  place,  to  be  examined  touching  their  property 
and  Its  value;  and  the  judge  must,  at  the  same  time,  cause 
a  notice  to  be  Issued  to  the  executor  or  administrator 
requiring  his  appearance  on  the  return  of  the  citation; 
and  on  Its  return  he  may  examine  the  sureties  and  such 
witnesses  as  may  be  pro-duced,  touching  the  property  of  the 
Bureties  and  its  value;  and  If,  upon  such  examination,  he 
Is  satisfied  that  the  bond  Is  insufficient,  he  must  require 
sufficient  additional  security.  En.  March  11,  1S72.  Am'd. 
1873-4,  859;   1880,  81. 

Cal.  Rep.  Cit.  72,  24;  111,  156. 

Citations:   Post,  sees.  1707,  1711. 

Additional   security,   effect   of   failure   to   give,   in   time: 
Post,  sec  1395. 


SS  1305-1^98  E-fECUTORS.    ETC.  826 

§  1395.  Right  ceases,  when  sufficient  security  not 
given.  If  sufficient  security  is  not  given  within  the  tim'^ 
fixed  by  the  judge  's  order,  the  right  of  such  executor  or  ad- 
ministrator to  the  administration  shall  ,ioasc>,  and  the  per- 
son next  entitled  to  the  administration  on  the  estate,  who 
will  execute  a  sufficient  bond,  must  be  appointed  to  the  ad- 
ministration.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  Ill,  157;   111,  158. 

§  1396.  When  bond  may  be  dispensed  with.  When  it 
is  expressly  provided  in  the  will  that  no  bond  shall  be  re- 
quired of  the  executor,  letters  testamentary  may  issue,  and 
sales  of  real  estate  be  made  and  confirmed  without  any 
bond,  unless,  the  court,  for  good  cause,  require  one  to  be 
executed;  but  the  executor  may  at  any  time  afterward,  (if 
it  appear  from  any  cause  necessary  or  proper),  be  re- 
quired to  file  a  bond,  as  in  other  cases.  En.  March  11, 
1872.     Am'd.   1873-4,  360. 

Cal.  Rep.  Cit.  53,  20. 

Prob.  Act,  sec.  77.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1S64,  369. 


§  1397.  Petition  showing  failing  sureties  and  asking 
for  further  bonds.  Any  person  interested  in  an  estate 
may,  by  verified  petition,  represent  to  the  superior  co-urt, 
or  a  judge  thereof,  that  the  sureties  of  the  executor  or 
administrator  thereof  have  become,  or  are  becoming,  in- 
solvent, or  that  they  have  removed,  or  are  about  to  re- 
move, from  the  state,  or  that  from  any  other  ca'use  the 
bond  is  insufficient,  and  ask  that  further  security  be  re- 
quired.    En.  March  11,  1872.     Am'd.  1880,  81. 

Cal.  Rep.  Cit.  64,  39;  146,  171. 

Prob.  Act,  sec.  78.  En.  April  22,  1850.  Rep,  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  68,  86. 

Ask  further  security,  court  may:  Post,  sec.  1402. 


§  1398.     Citation  to  executor,  etc.,  to  show  cause  against 
such  application.     If  the  court,  or  a  judge  thereof,  is  satis- 


527      -  EXECUTORS,    ETC.    .  5J  1-S-HOl 

fled  that  the  matter  requires  investigation,  a  citaition  must 
be  issued  to  the  executor  or  administrator,  requiring  him 
to  appear,  at  a  time  ajid  place  to  be  therein  specified, 
to  show  cause  why  he  should  not  give  further  security. 
The  citation  must  be  served  personally  on  the  execaitor 
or  administrator,  at  least  five  days  before  the  return 
day.  If  he  has  absconded,  or  cannot  be  found,  it  may  be 
served  by  leaving  a  copy  of  it  at  his  place  of  residence, 
or  by  such  publication  as  the  court  or  a  ju-dge  thereof  may 
order.     En.  March  11,  1872.     Am'd.  1880,  81. 

Cal.  Rep.  Cit.  72,  24;   116,  451. 

Prob.  Act,  sec.  79.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  68,  86. 

§  1399.  Further  security  may  be  ordered.  On  the  re- 
turn of  tie  citation,  or  at  such  other  time  as  the  judge  may 
appoint,  he  m-ust  proceed  to  hear  the  proofs  and  allegations 
of  the  parties.  If  it  satisfactorily  appears  that  the  security 
is  from  any  cause  insufficient,  he  may  make  an  order  re- 
quiring the  executor  or  administrator  to  give  further  se- 
curity, or  to  file  a  new  bond  in  the  usual  form,  within  a 
reasonable  time,  not  less  than  five  days.  En.  March  11, 
1872. 

Prob.  Act,  sec.  80.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit  68,  86. 

§  1400.     Neglecting    to   obey   order.     If   the   executor  or 

administrator  neglects  to  comply  with  the  order  within 
the  time  prescribed,  the  judge  must,  by  order,  revoke  his 
letters,  and  his  authority  must  thereupon  cease.  En.  March 
11,  1872. 

Prob.  Act,  sec.  81.  En.  April  22,  1850.  Rep,  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  G8,  86. 

§  1401.  Suspending  powers  of  executor,  etc.  When  a 
petition  is  presented  praying  that  an  executor  or  admin- 
istrator be  required  to  give  further  security,  or  to  give  bond, 
where  by  the  terms  of  the  will  no  bond  was  originally  re- 


a  1402-1404  EXECUTORS,    ETC.  628 

quired,  and  it  is  alleged  on  oath  that  the  executor  or  ad- 
ministrator is  wasting  the  property  of  the  estate,  the  judge 
may,  by  order,  suspend  his  powers  until  the  matter  caai 
be  heard  and  determined.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  53,  20. 

Prob.  Act,  sec.  82.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1402.  Further  security  ordered  without  application  of 
party  in  interest.  When  it  comes  to  his  knowledge  that 
the  bond  of  any  executor  or  atlrainistrator  is  from  any  cause 
insufficient,  the  judge,  v/ithout  any  application,  must  cause 
him  to  be  cited  to  appear  and  show  cause  why  he  shouM 
not  give  further  security,  and  must  procead  thereon  as  upon 
the  application  of  any  person  interested.  En.  March  11, 
1872.     Am'd.  1880,  81. 

Cal.  Rep.  Cit.  64,  39;   116,  451;   127,  C62;   14G,  171. 

Prob.  Act,  sec.  83.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

§  1403.  Release  of  sureties.  When  a  surety  of  any 
executor  or  administrator  desire-s  to  be  released  from 
responsibility  on  account  of  future  acts,  he  may  make 
application  to  the  superior  court,  or  a  judge  thereof,  for 
relief.  The  court  or  judge  must  cause  a  citation  to  the 
executor  or  administrator  to  be  issued,  and  served  per- 
sonally, requiring  him  to  appear  at  a  time  and  place  to 
be  therein  specified,  and  to  give  other  security.  If  he  has 
absconded,  left,  or  removed  from  the  state,  or  if  he  cannot 
be  found,  after  due  diligence  and  Inquiry,  service  may  be 
made  as  provided  in  section  one  thousand  three  hundred 
and  ninety-eight.     En.  March  11,  1872.     Am'd.  1880,  82. 

Cal.  Rep.  Cit.     64,  40;  72,  24;  107,  213;  116,  451;  146,  170. 

Prob.  Act,  sec.  84.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  633. 

§  1404.  New  sureties.  If  new  sureties  be  given  to  the 
satisfaction  of  the  judge,  he  may  thereupon  make  an  order 
that  the  sureties  who  applied  for  relief  shall  not  be  liable 
on  their  bond  for  any  subsequent  act,  default,  or  misconduct 
of  the  executor  or  administrator.    En.  March  11,  1872. 

Cal.  Rep.  Cit  65,  594;  67,  383;  107,  213. 


629  EXECUTORS,    ETC.  §§  1105-1411 

Prob.  Act,  sec.  S5.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1405.     Neglect    to    give    nevj    sureties    forfeits    letters. 

If  the  executor  or  administrator  neglects  or  refuses  to 
give  new  sureties,  to  the  satisfaction  of  the  jud'ge,  on  the 
return  of  the  citation,  or  within  such  reasonable  time  as 
the  judge  shall  allow,  unless  the  surety  making  the  appli- 
cation shall  consent  to  a  longer  extension  of  time,  the 
court  or  judge  must,  by  order,  revoke  his  letters.  En. 
March  11,  1872. 

Prob.  Act,  sec.  86.  En.  April  22,  1850,  Rep,  1851,  489. 
En.  1851,  448.     Am'd.  1801,  634, 

§  1406.     Application   to   be    determined    any  time.     The 

applications  authorized  by  the  nine  preceding  sections  of 
this  chapter  may  be  heard  and  determined  at  any  time.  All 
orders  made  therein  must  be  entered  upon  the  minutes 
of  the  court     En.  March  11,  1872.     Am'd.  1880,  82. 

Prob.  Act,  sec,  87.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1407.  Liability  on  bond.  The  liability  of  principal 
and  sureties  upon  the  bond  of  any  executor,  administrator, 
or  guardian,  is  in  all  casies  to  pay  in  the  kind  of  money  or 
currency  in  v.-hich  the  principal  Is  legally  liable.  En. 
Stats.  1873-4,  361. 

Cal.  Rep.  Cit    76,  299. 


ARTICLE  VII. 

SPECIAt,   ADMINISTRATORS   AND   THEIR   POWERS   AND   DUTIES 

5  1411.  Special    administl-ator,    when    appointed. 

§  lfl2.  Sppcial    letters   may    Issue   at   any   time. 

§  1413.  Preference   given    to   persons   entitled    to    letters. 

§  1414.  Special  administrator  to  give  bond  and  take  oath. 

§  1415.  Duties   of    special    administrator. 

§  1416.  When    letters    testamentarj'    or    of    administration    are    gri'anted, 

special   administrator's   powers  cease. 

§  1417.  Special   administrator   to   render   account. 

§  1411.  Special  administrator,  when  appointed.  When 
there  is  delay  in  granting  letters  testamentary  or  of  ad- 
ministration   from    any    cause,    or    when   such   letters   are 

Code    CivU    Proc.— 34. 


5§  1412,  1413  EXECUTORS,    ETC.  S90 

granted  Irregnlarly,  or  no  sufficient  bond  is  filed  as  re- 
quired, or  when  no  application  is  made  for  such  letters,  or 
when  an  executor  or  administrator  dies,  or  is  suspended,  or 
removed,  the  superior  court,  or  a  judge  thereof,  must  ap- 
point a  special  administrator  to  collect  and  take  charge 
of  the  estate  of  the  decedent  in  whatever  county  or  coun- 
ties the  same  may  be  found,  and  to  exercise  such  other 
powers  as  may  be  necessary  for  the  preservation  of  the  es- 
tate; or  he  may  direct  the  public  administrator  of  his 
county  to  take  charge  of  the  estate.  En.  March  11,  1872. 
Am'd.  1880,  82. 

Cal.  Rep.  Cit  70,  344;  8G,  73;  94,  568;  98,  66;  106,  432; 
111,  158;   142,  118;   142,  433. 

Prob.  Act,  sec  88.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1855,  133. 

Cal.  Rep.  Cit  7,  231;  22,  67. 

Prdb.  Act,  sec.  95.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit  20,  311. 

Prob.  Act,  sec.  282.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  652. 

§  1412.  Special  letters  may  issue  at  any  time.  The  ap- 
pointment may  be  made  at  any  time,  and  without  notice, 
and  must  be  made  by  entry  upon  the  minutes  of  the  court 
specifying  the  powers  to  be  exercised  by  the  administrator. 
Upon  such  order  being  entered,  and  after  the  person  ap- 
pointed has  given  bond,  the  clerk  must  issue  letters  of 
administration  to  such  person  in  conformity  with  the  order. 
En.  March  11,  1872.     Am'd.  1880,  82. 

Cal.  Rep.  Cit  78,  301. 

Prob.  Act,  sec  89.  En,  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit  22,  67. 

Oath  and  bond:   Post,  sec.  1414. 

§  1413.  Preference  given  to  persons  entitled  to  letters. 
In  making  the  appointment  of  a  special  administrator, 
the  court  or  jndge  must  give  preference  to  the  person  en- 
titled to  letters  testamentary  or  of  administration,  but 
no  appeal  mnst  be  allowed  from  the  appointment  En. 
March  11,  1872.     Am'd  1880,  82. 

CaL  Rep.  Cit  73,  203;  142,  433. 


r.21  EXECUTORS,    ETC.  §§  1414-1416 

iTcb.  Act,  sec  90.  En.  April  22,  1850.  Rep.  1851.  489. 
Eu.  1851,  448. 

Cal.  Rep.  Cit.  97,  570. 

Persons  entitled  to  letters:  Ante,  sees.  1365  et  seq. 

§  1414.  Special  administrator  to  give  bond  and  take 
oath.  Before  any  letters  issue  to  any  special  adminis- 
trator, he  must  give  bond  In  such  sum  as  the  court  or  judge 
may  direct,  with  sureties  to  the  satisfaction  of  the  court  or 
judge,  comiitioned  for  the  faithful  performance  of  his 
duties;  and  he  must  take  the  usual  oath,  and  have  the 
same  indorsed  on  his  letters.  En.  March  11,  1872.  Am'd. 
1880,  82. 

Prob.  Act,  sec,  91.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Oath  and  bond  of  administrator,  etc:  Ante,  sees.  1387- 
1407. 

§  1415.  Duties  of  special  administrator.  The  special 
administrator  must  collect  and  preserve  for  the  executor  or 
administrator,  all  the  goods,  chattels,  debts,  and  effects  of 
the  decedent,  all  incomes,  rents,  issues,  and  profits  claims, 
and  demands  of  the  estate;  must  take  the  charge  and 
management  of,  enter  upon  and  preserve  from  damage, 
waste,  and  injury,  the  real  estate,  and  for  any  such  and 
all  necessary  purposes  may  commence  and  maintain  or 
defend  suits  and  other  legal  proceedings  as  an  admin- 
istrator; he  may  sell  such  perishable  property  as  the  court 
may  order  to  be  sold,  and  exercise  such  other  powers  as 
are  conferred  upon  him  by  his  appointment,  but  in  no  case 
is  he  liable  to  an  action  by  any  creditor  on  a  claim  against 
the  decedent.    En,  March  11,  1872.    Am'd,  1880,  83. 

Cal.  Rep.  Cit.  50,  302;  69,  240;  106,  431;  106,  432;  106,  433. 

Prob.  Act,  sec  92.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  634. 

CaL  Rep,  Cit.  7,  232. 

§  1416.  When  letters  testamentary  or  of  administration 
are  granted,  special  administrator's  powers  cease.  When 
letters  testamentary  or  of  administration  on  the  estate 
of  the  decedent  have  been  granted,  the  powers  of  the 
special  administrator  cease,  and  he  must  forthwith  deliver 


§§  1417.  142S  EXECUTORS,    ETC.  B33 

to  the  executor  or  administrator  all  the  property  and  ef- 
fects of  the  decedent  in  his  hands;  and  the  executor  or 
administrator  may  pros€>cute  to  final  judgment  any  suit 
commenced  by  tlie  special  administrator.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.  142,  433. 

Prob.  Act,  sec.  93.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1417.  Special  administrator  to  render  account.  The 
special  administrator  must  render  an  account,  on  oath,  of 
his  proceedings  in  a  like  manner  as  other  adjninistrators 
are  required  to  do.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  69,  241. 

Prob.   Act,  sec.  94.     En.  April  22,  1850.     Rep.  1851,  489. 
En.  1851,  448. 
Account  of  administrator,  etc.:  Post,  sees.  1622  et  seq. 


ARTICLE  VIII. 

WILLS       FOUND       AFTER       LETTERS        OF       ADMINISTRATION 
GRANTED,    AND    MISCELLANEOUS    PROVISIONS. 

5  1423.  On  proof  of  will,  after  grant  of  letters  of  administration,  let- 
ters  revoked. 

§  1434.    Power  of  executor  In  such  a  case. 

§  U2i.  Remaining  administrator  or  executor  to  continue  when  his  col- 
leagues are   disqualified. 

§  1426.    Who   to   act   when  all  acting   are   Incompetent. 

§  1427.  Executor  or  administrator  may  resign,  when.  Court  to  appoint 
successor.     Liability   of   outgoer. 

§  1428.    All   acts   of   executor,    etc.,    valid   until   his   power   la   revoked. 

§  1429.    Transcript  of  court  minutes  to  be  evidence. 

§  1423.  On  proof  of  will,  after  grant  of  letters  of  admin, 
istration,  letters  revoked.  If,  after  granting  letters  of  ad- 
ministration on  the  ground  of  intestacy,  a  will  of  the  de- 
cedent is  duly  proved  and  allowed  by  the  court,  the  letters 
of  administration  must  be  revoked,  and  the  power  of  the 
administrator  ceases,  and  he  must  render  an  account  of  his 
administration  within  such  time  as  the  court  shall  direct 
En.  March  11,  1872. 

Prob.  Act,  sec.  98.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Account  of  administration:  Sees.  1G22  et  seq. 


633  ESECUTORS,    ETC.  §§  1424-142« 

§  1424.  Power  of  executor  in  such  a  case.  In  such  case, 
the  executor  or  the  administrator  with  the  will  annexed  is 
entitled  to  demand,  sue  for,  recover  and  collect  all  the 
rights,  goods,  chattels,  debts  and  effects,  of  the  decedent 
remaining  unadministered,  and  may  prosecute  to  final 
judgment  any  suit  commenced  by  the  administrator  before 
the  revocation  of  his  letters  of  administration.  En.  March 
11,  1872. 

Prob.  Act,  sec.  99.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 


§  1425.  Remainmg  adminrstrat'^r  oi-  executor  ^o  con- 
tinue when  his  colleagues  are  disqualifieo".  In  case  ary 
one  of  several  executors  or  administrators  to  whom  letters 
are  granted,  dies,  becomes  lunatic,  is  convicted  of  an  in- 
famous crime,  or  otherwise  becomes  incapable  of  executing 
the  trust;  or  in  case  the  letters  testamentary  or  of  admin- 
istration are  revoked  or  annulled,  with  respect  to  any  one 
executor  or  administrator,  the  remaining  executor  or  ad- 
ministrator must  proceed  to  complete  the  execution  of  the 
■will  or  administration.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     68.  283;   99,  218;  108,  488. 

Prob.  Act,  sec.  96.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851.  448. 

Cal.  Rep.  Cit  20,  311. 


§  1426.  Who  to  act  when  aFI  acting  are  Incompetent. 
If  all  such  executors  or  administrators  die  or  become  in- 
capable, or  the  power  and  authority  of  all  of  them  Is  re- 
voked, the  court  must  issue  letters  of  administration,  with 
the  will  annexed  or  otherwise,  to  the  widow  or  next  of  kin, 
or  others,  in  the  saane  order  and  manner  as  is  directed  in 
relation  to  original  letters  of  administration.  The  admin- 
istrators so  appointed  must  give  bond  in  the  like  penalty, 
with  like  sureties  and  conditions,  as  hereinbefore  re- 
quired of  administrators,  and  shall  have  the  like  power 
and  authority.     En.  March  11,  1872.     Am'd.  1880,  83. 

Cal.  Rep.  Cit.  68,  283;  99,  218;  108,  488;  112,  16. 

Prob.  Act,  sec.  97.     En.  April  22,  1850.     Rep.  1851,  489. 

En.  1851,  448. 

OaL  Rep.  Cit.  32,  441. 


J§   1427- 142J  EXECUTORS.    ETC.  834 

Letters  c/i.  administration — Order  and  manner  of  grant- 
ing: Ante,  sees.  1365  et  seq.;  with  will  annexed:  Ante,  sec. 
1356. 

Oath  and  bond:  Ante,  sees.  1387-1407. 

Power  and  authority:  Post,  sees.  1581  et  seq. 

§  1427.  Executes*  cr  administrator  may  res!gr.,  when. 
Court  to  appoint  successsof.  Liabiiity  of  outgoi^h.  Any 
executor  or  administrator  may,  at  any  time,  by  writing, 
filed  in  the  superior  court,  resign  his  appointment,  having 
first  settled  his  accounts  an-d  'delivered  up  all  the  est&te 
to  the  person  whom  the  court  shall  appoint  to  receive  tiie 
same.  If,  however,  by  reason  of  ary  delays  in  such  set- 
tlement and  delivery  up  of  the  estate,  or  for  any  other 
cause,  and  circumstances  of  the  estate  or  the  rights  of  those 
Interested  therein  require  it,  the  court  may  at  any  time 
before  settlement  of  accounts  and  delivering  up  of  the  es- 
tate is  completed,  revoke  the  letters  of  such  executor  or 
administrator,  and  appoint  in  his  stead  an  administra- 
tor, either  special  or  general,  in  the  same  manner  as 
Is  directed  In  relation  to  original  letters  of  administration. 
The  liability  of  the  outgoiu'g  executor  or  administrator,  or 
of  the  sureties  on  his  bond,  shall  not  be  in  any  manner 
discharged,  released,  or  affected  by  such  appointment  or 
resignation.     En.  Maich  11,  1872.     Am'd.  1880,  83. 

Cal.  Rep.  Cit.  70,  342;  78,  584;  80,  16;  127,  452. 

Prob.  Act  sec.  100.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1858,  105. 

§  1428.  All  acts  of  executor,  etc.,  valid  until  his  power 
is  revoked.  All  acts  of  an  executor  or  administrator  as 
such,  before  the  revcK?ation  of  his  letters  testamentary  or 
of  administration,  are  as  valid  to  all  intents  and  purposes 
as  if  such  executor  or  administrator  had  continued  lawfully 
to  execute  the  duties  of  his  trust    En.  March  11,  1872. 

Prob.  Act,  sec.  101.     En.  April  22,  1850.     Rep.  1851,  489. 
En.  1851.  448. 
Cal.  Rep.  Cit.  20,  311. 

§  1429.  Transcript  of  court  minutes  to  be  eviderrce. 
A  transcript  from  the  minutes  of  the  court,  showing  the 
appointment  of  any  person  as  executor  or  administrator, 


SJ5  EXECUTORS,    ETC.  iS  1430,  1431 

together  with  the  certificate  of  the  clerk  under  his  hs-cd 
and  the  seal  of  his  court,  that  such  person  has  given  bonJ 
and  been  qualified,  and  that  letters  testamentary  or  of  ad- 
ministi-ation  have  besn  issued  to  him  and  have  not  been 
revoked  shall  have  the  same  effect  in  evidence  as  the  let- 
ters themselves.     En.  March  11,  1872. 

Pfolo.  Act,  sec.  102.     En.  April  22,  1850.     Rep.  1851,  489. 
En.  1851,  448. 

Letteis  and  bonds  recordetl:  Ante,  sec.  1387. 


ARTICLE  IX. 

DISQUALIFICATION    OF    JUDGES    AND    TRANSFERS    OF    ADMIN- 
ISTRATIONS. 

S  1430.    When  Judge  not  to  act. 

§  1131.    Transfer  of  probate  matters  to  adjoining  county. 

§  1432.    Transfer  not   to   change   right   to   administer.    Re- transfer,    how 

made. 
§  1433.    When  proceedings  to  be  returned  to  original  court. 

§  1430.  When  judge  not  to  act.  No  will  shall  be  ad- 
mitted to  probate,  or  letters  testamentary  or  of  administra- 
tion granted  before  any  judge  who  is  interested  as  next  of 
kin  to  the  decedent,  or  as  a  legatee  or  devisee  under  the 
will,  or  when  he  is  named  as  executor  or  trustee  in  the 
will,  or  is  a  witness  thereto,  or  is  in  any  other  manner 
interested  or  disqualified  from  acting.  En.  March  11,  1872. 
Am'd.  1880,  83. 

Prob.  Act,  sec.  103.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1864,  369. 

§  1431.     Transfer  of  probate  matters  to  adjoining  county. 

When  a  petition  is  filed  in  the  superior  court,  praying  for 
admission  to  probate  of  a  will,  or  for  granting  letters 
testamentary  or  of  administration,  or  when  proceedings 
are  pending  in  the  superior  court  for  the  settlement  of 
an  estate,  and  there  is  no  judge  of  said  court  qualified  to 
act,  an  order  must  be  made  transferring  the  proceedings 
to  the  superior  court  of  an  adjoining  county,  and  the  clerk 
of  the  court  ordering  the  transfer  must  transmit  to  the  clerk 
of  the  court  to  which  the  proceedings  are  ordered  to  be 


§5  1482.  1433  EXECUTOnS,     T.TCl.  tM 

transferred  a  certlflsd  copy  of  th'i  ryrder  and  all  papers 
on  file  In  his  office  In  tho  proceed'r.'^ia;  and  thereafter  the 
court  to  which  the  procoe:lir>g  Is  transferred  shall  exercise 
the  same  authority  and  Jurisdiction  over  the  ^stato,  and  all 
matters  relating  to  the  administration  thereof,  as  if  It  had 
ori'ginal  Jurisdiction  of  the  estate;  provided,  there  shall  not 
be  any  necessity  for  trao^fenlng  such  proceedings,  or 
any  of  them,  when  a  Judge  of  some  other  county  qualified 
to  act  attends  at  the  rpxiJ3'3t  of  the  Judge  of  the  county 
where  such  procec;dlrigs  are  pending,  to  hold  court,  to 
conduct  and  to  try  such  proceedings;  an-d  such  Judge, 
when  so  callQd  upon  *.o  preside,  shall  exercise  Jurisdiction 
over  any  proceeding  in  the  estate  as  Is  exercised  in  other 
cases  under  like  circumstar.ces  En.  March  11,  1872.  Am'-d. 
1880,  84;  1391,  433. 

Prob.  Act,  sec.  104.     En.  April  22,  1S50.     Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1864,  869;  1866,  828. 


§  1432,  Transfer  r,ot  to  change  right  to  administer, 
n'itransfer,  how  made.  The  transfer  of  a  proceeding 
from  one  court  to  another  as  provided  for  In  the  preceding 
section,  shall  not  affect  the  right  of  any  person  to  letters 
testamentary  or  of  administration  on  the  estate  transferred, 
but  the  same  persons  are  entitled  to  letters  testamentary 
-or  of  administration  on  the  estate,  In  the  order  hereinafter 
provided.  If,  before  the  administration  Is  closed  of  any 
estate  so  transferred  as  herein  provided,  another  person 
Is  elected  or  appointed,  and  qualified  as  Judge  of  the  court 
wherein  siich  proceeding  was  originally  commenced,  who 
Is  not  disqualified  to  act  in  the  settlement  of  the  estate, 
and  the  causes  for  which  the  proceeding  was  transferred  no 
longer  exist,  any  person  interested  in  the  estate  may  have 
the  proceeding  returned  to  the  court  from  which  it  was 
originally  transferred,  by  filing  a  petition  setting  forth 
these  fa«ts,  and  moving  the  court  therefor.  En.  March  11, 
1872.     Am'd.  1880,  84. 


§  1433.  When  proceedings  to  be  returned  to  original 
court.  On  hearing  the  motion,  If  the  facts  required  by  the 
preceding  section  to  be  set  otit  in  the  petition  are  satia- 
factorily  shown,  and  it  further  appears  to  the  court  that  the 
convenience  of  parties  interested  would  be  promoted  by 
Buch  change,  the  Judge  must  make  an  order  transferring 
the  proceeding  back  to  the  court  where  it  was  originally 


687  ■  EXECUTORS,    ETC.  8  ■l*3« 

conimenced ;  aud  the  clerk  of  the  court  orderins  the 
transfer  must  trauBmit  to  the  clerk  of  the  court  in  which 
the  proceeding  was  originally  connmenced,  a  certified  copy 
of  the  order,  and  all  the  original  papers  on  file  in  his  office 
in  the  nroceeding;  and  the  court  where  the  proceeding 
v/as  originally  commenced  shall  thereafter  have  jurisdic- 
tion and  power  to  make  all  necessary  orders  and  decrees 
to  close  up  the  administration  of  the  estate.  En.  March  11, 
1872.    Am'd.  1880,  84. 


ARTICLE  X. 

REMOVALS   AND    SUSPENSIONS    IN    CERTAIN   CASES. 

8  1436.     Suspension    of   powers    of   executor. 

9  1437.    Executor  to  have  notice  of  his  suspension,   and   to  be  cited  to 

appear. 
6  1438.     Any   party   Interested   may   appear  on   hearing. 
I  1439.    Notice   to  absconding  executors  and  administrators. 
§  1#10.    May  compel   attendance. 

§  1435.  Suspension  of  powers  of  executor.  Whenever  a 
judge  of  a  superior  court  has  reason  to  believe,  from  his 
own  knowledge,  or  froon  credible  information,  that  any 
executor  or  administrator  has  wasted,  embezzled,  or  mis- 
managed, or  is  about  to  waste  or  embezzle  the  property 
of  the  estate  committed  to  his  charge,  or  has  committed 
or  Is  about  to  commit  a  fraud  upon  the  estate,  or  Is  incom- 
petent to  act,  or  has  permanently  removed  from  the  state, 
or  has  wrongfully  neglected  the  estate,  or  has  long 
neglected  to  perform  any  act  as  such  executor  or  admin- 
istrator, he  must,  by  an  order  entered  upon  the  minutes 
of  the  court,  suspend  the  powers  of  such  executor  or  ad- 
ministrator, until  the  matter  is  Investigated.  En.  March 
11,  1872.     Am'd.  1880,  84. 

Cal.  Rep.  CIt.  61,  154;  70,  844;  83,  586;   99,  221;  122,  381; 
122,  382;  122,  383;  125,  305;  125,  308;  135,  195;  137,  475. 

Prob.  Act,  sec.  281.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851.  448.    Am'd.  1861,  65L 

Cal.  Rep.  Cit.  6,  669. 

Misconduct    of    executor — As    to    inventory:    Post,   seca 


IS  1437-1439  EXECUTORS,     ETC.  6S8 

1450,  1451;  as  to  exhibit  and  account:  Post,  sees.  1C2C,  1627, 
1G30. 

Suspension  of  executor,  etc. — Done  at  chambers:  Ante, 
sec.  166. 

Removal  of  executor:   Ante,  sees.  13S3  et  seq. 

§  1437.  Executor  to  have  notice  of  his  suspension,  and 
to  be  cited  to  appear.  -When  such  suspension  is  made, 
notice  thereof  must  be  given  to  the  executor  or  administra- 
tor, and  he  must  be  cited  to  appear  and  show  cause  why 
his  letters  should  not  be  revoked.  If  he  fall  to  appear  in 
obedience  to  the  citation,  or  if  appearing,  the  court  is  sat- 
isfied that  there  exists  cause  for  his  removal,  his  letters 
must  be  revoked,  and  letters  of  administration  granted 
anew,  as  the  case  may  require.    En.  March  11,  1872. 

Gal.  Rep.  CIt.  70,  344;  122,  382;  125,  305;  125,  308. 

Prob.  Act,  sec.  283.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

Cal.  Rep.  Clt.  6,  669. 

§  1438.  Any  party  interested  may  appear  on  hearing. 
At  the  hearing,  any  person  interested  in  the  estate  may 
appear  and  file  his  allegations  in  writing,  showing  that 
the  executor  or  administrator  should  be  removed;  to  which 
the  executor  or  administrator  may  demur  or  answer,  as 
hereinbefore  provided.  The  Issues  raised  must  be  heard 
and  determined  by  the  court.    En.  March  11,  1872. 

Cal.  Rep.  Clt.  70,  344;   122,  381;  125,  305. 

Prob.  Act,  sec.  284.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1439.  Notice  to  absconding  executors  and  adminis- 
trators. If  the  executor  or  administrator  has  absconded  or 
conceals  himself,  or  has  removed  or  absented  himself  from 
the  state,  notice  may  be  given  him  of  the  pendency  of 
the  proceedings  by  publication,  in  such  manner  as  the 
court  may  direct,  and  the  court  may  proceed  upon  such 
notice  as  if  the  citation  had  besa  personally  served.  En. 
March  11,  1872. 

Cal.  Rep.  Clt.  70,  844;  122,  881. 

Prob.  Act,  sec.  285.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  652. 

Compare:  Post,  sec.  1680. 


£39  EFFECTS    OF    DECEDENTS.  §§  1440- 1}« 

'     §  1440.     May    compel     attendance.     In   the    proceedings 

authorized  by  the  preceding  sections  of  this  article,  for 
the  removal  of  an  executor  or  administrator,  the  court  may- 
compel  his  attendance  by  attachment,  and  may  compel  him 
to  answer  questions,  on  oath,  touching  his  administration, 
and,  upon  his  refusal  so  to  do,  may  commit  him  until  he 
obey,  or  may  revoke  his  letters,  or  both.  En.  March  11, 
1872. 

Cal.  Rep.  Cit  61,  154;   83,  586;  122.  381. 

Prob.  Act.  sec.  286.    En.  April    22,  1850.     Rep.  1851,  489. 

En.  18-51,  448.    Am'd.  18G1,  C52. 

Compelling   obedience:    Compare   post,    sees.   1627,    1628; 
as  to  contempt:  Ante,  sees.  1209,  1219. 


CHAPTER  TV. 

OF   THE    imrETNTORT    AND    COIJ>BCTIOn    OF   THB    EFFECTS    OF 

DECEDENTS. 

Article  I.     Inventory.    Appraisement,    and   Possession   of  Estate,    §5    1443- 
1453. 
II.    EUnbezzlement    and    Bnrreira«r    of    Property    of    Estate.     {5 
14S8-146L 


ARTICLE  L 

INVENTORY,     APPRAISBMENT,     AND     POSSESSION    OF     ESTATE. 

§  1443.  Inventory  to  be  returned.   Including  the  homestead. 

I  1444.  Appraisement    and    pay    of   appraisers. 

§  1445.  Oath   of   appraisers   and    Inventory,    how   ma<3e. 

§  1146.  Inventory  to  account  for  moneys.  If  aU  money,  no  appraise- 
ment   necessary. 

§  1447.  Effect   of  naming   a   debtor   executor. 

I  1448.  Discharge   or  bequest   of   debt   against   executor. 

§  1449.  To   make   oath   to   inventory. 

§  1450.  Letters   may   be   revoked    for   neglect   of  administrator. 

I  1451.  Inventory    of    after-discovered    property. 

§  1«2.  Administrator  and   executor  to  possess  real  and  personal   estate. 

§  1453.  Executor  or  administrator  to  deUver  real  estate  to  heirs  or 
vJevisees. 

§  1443.  Inventory  to  be  returned,  including  the  home- 
stead. Every  executor  or  administrator  must  make  and 
return  to  the  court,  within  three  months  after  his  appoint- 
ment, a  true  Inventory  and  appraisement  of  all  the  estate 
of  the  decedent,  including  the  homestead,  if  any,  which 


§§  IIU,  1445  EFFECTS    OF    DECEDENTS.  MO 

has  come  to  hLs  possession  or  knowledge.  En.  March  11, 
1872.     Am'd.   1880,  85. 

Cal.  Rep.  Cit.  86,  310;  100,  1G8;  111,  434;  111,  458;  112,  395; 
119,  477. 

Proh.  Act,  sec.  105.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  43,  549. 

§  1444.  Appraisement  and  pay  of  appraisers.  To  make 
the  appraisement,  the  court  or  a  judge  thereof  must  ap- 
point three  disinterested  persons  (any  two  of  whom  may 
act),  who  are  entitled  to  receive  a  reasonable  compensation 
for  their  services,  not  to  exceed  five  dollars  per  day,  to  be 
allowed  by  the  court  or  judge.  The  appraisers  must,  with 
the  inventorj-,  file  a  verified  account  of  their  services  and 
disbursements.  If  any  part  of  the  estate  is  in  any  other 
county  than  that  in  which  letters  issued,  appraisers  thereof 
may  be  appointed,  either  by  the  court  or  judge  having 
jurisdiction  of  the  estate  or  by  the  court  or  judge  of  such 
other  county,  on  request  of  the  court  or  judge  having 
jurisdiction.  No  clerk  or  deputy,  nor  any  person  related 
by  consanguinity  or  affinity  to  or  connected  by  marriage 
or  In  business  with  the  judge  of  the  court,  shall  be  ap- 
pointed or  shall  be  competent  to  act  as  appraiser  In  any 
estate,  or  matter  or  proceeding  pending  before  such  judge 
or  in  said  court.  En.  March  11,  1872.  Am'd.  1880,  85;  1893, 
185. 

Cal.  Rep.  Cit.  119,  477. 

Prob.  Act,  sec.  106.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851.  448.     Am'd.  1861,  634. 

Appraisers — Duty  as  to  homestead:  Post,  sees.  1476,  1486; 
appointed  at  chambers:   Ante,  sec.  166. 

Appraiser  accepting  fee  not  allowed,  a  misdemeanor: 
See  Pen.  Code,  sec.  653%. 

§  1445.  Oath  of  appraisers  and  inventory,  how  made. 
Before  proceeding  to  the  execution  of  their  duty,  the  ap- 
praisers, before  any  officer  authorized  to  administer  oaths, 
m-ust  take  and  subscribe  an  oath,  to  be  attached  to  the 
inventorj',  that  they  will  truly,  honestly,  and  impartially 
appraise  the  property  exhibited  to  them,  according  to  the 
best  of  their  knowledge  and  ability.  They  must  thwi  pro- 
ceed to  estimate  and  appraise  the  property;  each  article 
must  be  set  down  separately,   with  the  valoe  thereof  In 


641  EFFECTS    OF    DECBHSENTS.  5§  1446-144S 

dollars  and  cents,  in  figures,  opposite  to  the  articles,  re- 
spectively; the  inventory  must  contain  all  tbe  estate  of 
the  decedent,  real  and  personal,  a  state::. snt  of  all  debts, 
partnerships,  and  other  interests,  bonds,  mortgages,  notes, 
and  other  securities  for  the  payment  of  money  belonging 
to  the  decedent,  specifying  the  name  of  the  debtor  in  each 
security,  the  date,  the  suth  originally  payable,  the  indorse- 
ments thereon,  (if  any)  with  their  dates,  and  the  sum 
which,  in  the  judgment  of  the  appraiser,  may  be  collected 
on  each  debt,  interest,  or  security;  the  inventory  must 
show,  so  far  as  the  same  can  be  ascertained  by  the  executor 
or  the  administrator,  what  portion  of  the  property  is  com- 
munity property,  and  what  portion  Is  the  separate  prop- 
erty of  the  decedent.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     58,  576;  68,  396;  119.  477. 

Pmb.  Act,  sec  107.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  634. 

§  1446.  Inventory  to  account  for  moneys.  If  all  money, 
no  appraisement  necessary.  The  inventory  must  also  con- 
tain an  account  of  all  moneys  belonging  to  the  decedent 
which  have  come  to  the  hands  of  the  executor  or  adminis- 
trator, and  if  none,  the  fact  must  be  so  stated  in  the  inven- 
tory. If  the  whole  estate  consists  of  money,  there  need 
not  be  an  appraisement,  but  an  inventory  m'ust  be  made 
and  returned  as  in  other  cases.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     119,  477. 

Prob.  Act,  sec.  108.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448.     Am'-d.  1866,  765. 

§  1447.  Effect  of  naming  a  debtor  executor.  The  nam- 
ing of  a  person  as  executor  does  not  thereby  discharge  him 
from  any  just  claim  which  the  testator  has  against  him 
but  the  claim  must  be  included  in  the  inventory,  and  the 
executor  is  liable  for  the  same,  as  for  so  much  money  in 
his  hands,  when  the  debt  or  demand  becomes  due.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  105,  445;  105,  446;  125,  246;  125,  248;  1S3, 
615;  145,  236. 

Prob.  Act,  sec.  109.  EiL  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1448.  Discharge  or  bequest  of  debt  against  executor. 
The  discharge  or  bequest  in  a  will,  of  any  debt  or  demand 


§§  1449-1451  EFFECTS   OF   DECEDENTS.  Ma 

of  the  testator  against  the  executor  named,  or  any  other 
person,  is  not  valid  against  the  creditors  of  the  decedent, 
but  is  a  specific  bequest  of  the  debt  or  demand.  It  must 
be  included  in  the  inventory,  and  If  necessary,  applied  in 
the  payment  of  debts.  If  not  necessary  for  that  purpose. 
It  must  be  paid  in  the  same  manner  and  proportion  as  other 
specific  legacies.     En.  March  11,  1872, 

Cal.  Rep.  Cit.     52,  577. 

Prob.  Act,  sec.  UO.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851.  448. 

5  1449.  To  make  oath  to  Inventory.  The  inventory 
m«st  be  signed  by  the  appraisers,  and  the  executor  or  ad- 
ministrator must  take  and  subscribe  an  oath  before  an  of- 
ficer authorized  to  administer  oaths,  that  the  Inventory 
contains  a  true  statement  of  all  the  estate  of  the  decedent 
which  has  come  to  his  knowledge  and  possession,  and  par- 
ticularly of  all  moneys  belonging  to  the  decedent,  and  of 
all  just  claims  of  the  decedent  against  the  affiant.  The  oath 
must  be  indorsed  upon  or  annexed  to  the  inventory.  En. 
March  11.  1873. 

Cal.  Rep.  Cit.  100,  167;   100,  168;   100,  109;   100,  598;  100, 
600;  100,  601;  100,  602;  105,  446. 

Prob.  Act,  sec.  lU.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448.     Am'd.   1861,  635. 

§  1450.  Letters  may  be  revoked  fop  i>eg?ect  of  adminis- 
trator. If  an  executor  or  administrator  neglects  or  refuses 
to  return  the  inventory  within  the  time  prescribed,  or  with- 
in such  further  time,  not  exceeding  two  months,  which  the 
court  or  judge  shall  for  reasonable  cause  allow,  the  court 
may,  upon  notice,  revoke  the  letters  testamentary  or  of 
administration,  and  the  executor  or  administrator  Is  liable 
on  his  bond  for  any  injury  to  the  estate,  or  any  person 
interested  therein,  arising  from  such  failura  En.  March 
11,  1872. 

Cal.  Rep.  Cit  61,  154;  106,  155;  111,  434. 

Prob.  Act,  sec.  112.  EJn.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  635. 

§  1461.  Inventory  of  after-discovered  property.  When- 
ever property  not  mentioned  in  an  inventory  that  is  made 


643  EFFECTS   OF    DECEDENTS.  !  1452 

and  filed,  comes  to  the  possession  or  knowledge  of  an  exec- 
utor or  administrator,  he  must  cause  the  sajne  to  be  ap- 
praised in  the  manner  prescribed  in  this  article,  and  an  in- 
•ventorj"-  thereof  to  be  returned  within  two  months  after  the 
discovery;  and  the  making  of  such  inventory  may  be  en- 
forced, after  notice,  by  attachment  or  removal  from  office. 
En.  March  11,  1872. 

Cal.  Rep.  Cit  58,  516;   61,  154. 

Prob.  Act,  sec  113.     En.  April  22,  1850.     Rep.  1851,  489. 
En.   1851,   448. 
Enforced  by  attachment,  etc:   C!ompare,  ante,  sec.  1440. 


§  1452-  Administrator  and  execirtop  to  possess  real  and 
personal  estate-  The  execntor  or  administrator  is  entitled 
to  the  possession  of  all  the  real  and  personal  estate  of  the 
decedent,  and  to  receive  the  rents  and  forfeits  [profits]  of 
the  real  estate  until  the  estate  is  settled,  or  until  delivered 
over  by  order  of  the  court  to  the  heirs  or  devisees;  and 
must  keep  in  good  tenantable  repair  all  houses,  buildings, 
and  fixtures  thereon  which  are  under  his  control.  The 
heirs  or  devisees  may  themselves,  or  jointly  with  the  exeoa- 
tor  or  administrator,  maintain  an  action  for  the  poss&sslon 
of  the  real  estate,  or  for  the  purpose  of  quieting  title  to 
the  same,  against  anyone  except  the  executor  or  adminis- 
trator; but  this  section  shall  not  be  so  construed  as 
requiring  them  so  to  do.  En.  March  11,  1872.  Am'd. 
1S80,  85, 

Cal.  Rep.  Cit  52,  350;  54,  122;  57,  388;  57,  459;  61,  600; 
67,  329;  69,  158;  80,  260;  81,  130;  83,  293;  85,  167; 
91,  662;  98,  103;  98,  266;  100,  168;  105,  183;  107,  594; 
110,  501;  110,  575;  112,  399;  126,  484;  131,671;  134,83; 
136,  34;  136,  635;  137,  174;  137,  255;  143,  272;  147,  558. 

Prob.  Act,  sec.  114.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  20,  627;  26,  123;  29,  373;  29,  514;  SI,  604; 
SI,  616;   31,  618;   42,  463;   57,  387. 

Anthority  oi  executors:    Ante,  sec  1S55. 

Possession  of  estate:  Post,  sec.  1581;  when  that  of  heirs, 
etc.:  Post,  sec.  1581;  as  to  partnership  property:  Post,  sec. 
1585. 

Until  delivered  to  heirs:   Post,  sec.  1453. 

Aetion  by  executor,  etc:  Post,  sees.  1458, 1581,  15S2  el  seq. 


{}  1453-1459  EFFECTS  OF   DECEDENTS.  544 

§  1453.  Executor  or  administrator  to  deliver  real  estate 
to  heir  or  devisees.  Unless  it  satisfactorily  appear  to  the 
court  that  the  rents,  issues,  and  profits  of  the  real  estate 
for  a  longer  period  are  necessary  to  be  received  by  the 
executor  or  administrator,  wherewith  to  pay  the  debts  of 
the  decedent,  or  that  it  will  probably  be  necessary  to  sell 
the  real  estate  for  the  payment  of  such  debts,  the  court,  at 
the  end  of  the  time  limited  for  the  presentation  of  claims 
against  the  estate,  must  direct  the  executor  or  adminis- 
trator to  deliYer  possession  of  all  the  real  estate  to  the 
heirs  at  law  or  devisees.  En.  March  11,  1872.  Am'd.  1880, 
85. 

Cal.  Rep.  Clt  67,  459;  85,  167;  107,  694;  136,  419. 


ARTICLE  IL 

EMBEZZLEMENT   AND   SITRRENDEB   OF   PROPERTY  OF  THE   ES- 
TATE}. 

§  1458.     Embezzling   estate   before   grrant   of   letters   testamentary. 

{  1459.     Citation   to   persons   suspected   to   have   embeizled   estate,    etc 

{  1460.     Refusal    to    obey    citation,    penalty    for,    and    for    embezzlement. 

May    be   compelled   to   disclose   by   Imprisonment.     Liable    for 

double  damages. 
S  14«1.    Persons    intrtisted    with    estate    of    decedent    may    be    dted    to 

account. 

§  1458.  Embezzling  estate  before  grant  of  letters  testa- 
mentary. If  any  person,  before  the  granting  of  letters 
testamentary  or  of  administration,  embezzles  or  alienates 
any  of  the  money's,  goods,  chattels,  or  effects  of  a  decedent, 
he  is  chargeable  therewith  and  liable  to  an  action  by  the 
executor  or  administrator  of  the  estate,  for  double  the 
value  of  the  property  so  embezzled  or  alienated,  to  be 
recovered  for  the  benefit  of  the  estate.    En.  March  11,  1872, 

Cal.  Rep.  Cit  58,  415;   61,  154;  105,  606;  105,  608. 

Prob.  Act,  sec.  116.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,   448. 

Cal.  Rep.  Cit.  29,  510;  29,  511;  29,  513;   30,  113;  105,  607; 
105,   608. 

Action  by  executors,  etc. — Generally:  Sec.  1452,  ante; 
Bjcs.  1460,  1581  et  seq.,  post. 

§  1459.  Citation  to  persons  suspected  to  have  embezzled 
estate,  etc    If  any  executor,  administrator,  or  other  person 


5-45  EFFECTS   OF   DECEDENTS.  §  1460 

interested  in  the  estate  of  a  decedent,  complains  to  the 
superior  court,  or  a  judge  thereof,  on  oath,  that  any  person 
is  suspected  to  have  concealed,  embezzled,  smuggled,  con- 
veyed away,  or  disposed  of  any  moneys,  goods,  or  chattels 
of  the  decedent,  or  has  in  his  possession  or  knowledge  any 
deeds,  conveyances,  bonds,  contracts,  or  other  writings, 
which  contain  evidences  of  or  tend  to  disclose  the  right, 
title,  interest,  or  claim  of  the  decedent  to  any  real  or 
personal  estate,  or  any  claim  or  demand,  or  any  lost  will, 
the  said  court  or  judge  may  cite  such  person  to  appear 
before  such  court,  and  may  examine  him  on  oath  upon  the 
matter  of  such  complaint.  If  such  person  is  not  in  the 
county  where  the  decedent  dies,  or  where  letters  have  been 
granted,  he  may  be  cited  and  examined  either  before  the 
superior  court  of  the  county  where  he  is  found,  or  before 
the  superior  court  of  the  county  where  the  decedent  dies, 
or  where  letters  have  been  granted.  But  if,  in  the  latter 
case,  he  appears  and  is  found  innocent  his  necessary  ex- 
penses must  be  allowed  him  out  of  the  estate.  En.  March 
11,  1872.     Am'd.  1880,  8G. 

Cal.  Rep.  Cit.  61,  154;  71,  2G9;  71,  271;  71,  272;  72,  24; 
94,  349;  100,  364;  105,  604;  105,  608;  105,  613;  105,  614; 
105,  618;  116,  451. 

Prob.  Act,  sec.  117.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

Cal.  Rep.  Cit.  105,  607. 

§  1460.  Refusal  to  obey  citation,  penalty  for,  and  for 
embezzlement.  May  be  compelled  to  disclose  by  imprison- 
ment. Liable  for  double  damages.  If  the  person  so  cited 
refuses  to  appear  and  submit  to  an  examination,  or  to 
answer  such  interrogatories  as  may  be  put  to  him,  touching 
the  matters  of  the  ccxmplaint,  the  court  may,  hy  warrant 
for  that  purpose,  commit  him  to  the  county  jail,  there  to 
remain  in  close  custody  until  he  submits  to  the  order  of 
the  court,  or  is  discharged  according  to  law.  If,  upon  such 
examination,  it  appears  that  he  has  concealed,  embezzled, 
smuggled,  conveyed  away,  or  disposed  of  any  moneys, 
goods  or  chattels  of  the  decedent,  or  that  he  has  in  his 
possession  or  knowledge  any  deeds,  conveyances,  bonds, 
contracts,  or  other  writings  containing  evidences  of  or 
tending  to  disclose  the  right,  title,  interest,  or  claim  of 
the    decedent   to    any    real    or   personal    estate,    claim,    or 

Code    Civil    Proc— 36. 


5  1461  EPTECTS    OF   DECEDENTS.  646 

demand,  or  any  lost  will  of  the  decedent,  the  court  may 
make  an  order  requiring  such  person  to  disclose  his  Itnowl- 
edge  thereof  to  the  executor  or  administrator,  and  may 
oonunit  him  to  the  county  jail,  there  to  remain  until  the 
order  is  complied  witn,  or  he  is  discharged  according  to 
law;  and  all  such  interrogatories  and  answers  must  be  in 
writing,  signed  by  the  party  e-aavned,  and  filed  in  the 
court.  The  order  for  such  di-sciosure  made  upon  such 
examination  shall  be  prima  facie  evidence  of  the  right  of 
the  executor  or  admini-^rtrator  to  such  property  in  any  ac- 
tion brought  for  the  recovery  thereof;  and  any  judgment 
recovered  therein  must  be  for  double  the  value  of  the  prop- 
erty as  assessed  by  the  court  or  jury,  or  for  return  of  the 
property  and  dajnages  in  addition  thereto,  equal  to  the 
value  of  such  property.  In  addition  to  the  examination  of 
the  partv,  witnesses  may  be  produced  and  examined  on 
either  side.  En.  March  11,  1872.  Am'd.  1873-4,  360;  1880. 
86. 

Cal.  Rep.  Cit.  71,  271;   71,  272;   94,  349;   98,  G43;   105,  604; 
105,  G05;  105,  608;  105,  613;  105,  614;  105,  618. 

Prob.  Act,  sec.  118.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1860,  357;  1861,  635. 

Cal.  Rep.  Cit.  105,  607. 

Contempt:    Sees.  1209,   1219. 

§  1461.  Persons  intrusted  with  estate  of  decedent  may 
be  cited  to  account.  The  superior  court,  or  a  judge 
thereof,  upon  the  campl9.int,  on  oath,  of  any  executor  or 
administrator,  may  cite  any  person  who  has  been  intrusted 
with  any  part  of  the  estate  of  the  decedent,  to  appear  before 
such  court,  and  require  him  to  render  a  full  account,  on 
oath,  of  any  moneys,  goods,  chattels,  bonds,  accounts,  or 
other  property  or  papers  belonging  to  the  estate,  which 
have  come  to  his  possession  in  trust  for  the  executor  or 
administrator,  and  of  his  proceedings  thereon;  and  if  the 
person  so  cited  refuses  to  appear  and  render  such  account, 
the  court  may  proceed  against  him  as  provided  in  the  pre- 
ceding section.     En.  March  11,  1872.     Am'd.  1880,  87. 

Cal.  Rep.  Cit  58,  415;    61,  154;   71,  269;   71,  271;   71,  272; 
100,  364;   105,  606;    105,  608;    116,  451. 

Prob.  Act,  sec.  119.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  33.  520;  47.  170;   57.  388;  105.  607. 


PROVISION    FOR    FAMILY.  5§   1464,  1405 


CHAPTER  V. 

OF  THE  PROVISION   FOR   THE   SUPPORT  OF  THE   FAMILY,    AND 
OF   THE    HOMESTEAD. 

Article  I.    Of    the    Provision    for    the    Support   of    the    Family,    5§    14C1- 
1470. 
U.    Of   the   Homestead,    §5  1474-1486. 


ARTICLE    I. 
OP    THE    PROVISION    FOR    THE    SUPPORT    OF   THE    FAMILY. 

§  1464.  Widow  and  minor  children  may  remain  in  decedent's  house, 
etc. 

§  14C5.  All  property  exempt  from  execuUoa  to  be  set  apart  for  use 
of   family. 

§  1466.    May   maie  extra  allowance. 

§  1467.     Payment  of  allowance. 

§  1468.  Property  set  apart,  how  apportioned  between  widow  and  chil- 
dren. 

§  1469.     Administration    when    estate    does    not    exceed    U,500.00. 

§  1470.    When   all   property    other   than   homestead    to   go    to    children. 

§  1464.  Widow  and  minor  children  may  remain  in  dece- 
dent's inouse,  etc.  When  a  person  dies,  leaving  a  widow 
or  minor  children,  the  widow  or  children,  until  letters  are 
granted  and  the  inventory  is  returned,  are  entitled  to 
remain  in  possession  of  the  homestead,  of  all  the  wearing 
apparel  of  the  family,  and  of  all  the  household  furniture  of 
the  decedent,  and  are  also  entitled  to  a  reasonable  pro- 
vision for  their  support,  to  be  allowed  by  the  superior 
court,  or  a  judge  thereof.  En.  March  11,  1872.  Am'd. 
1880,  87. 

Cal.  Rep.  Cit.  83,  325;  100,  170;  100,  598;  106,  430;  106   432- 

117,   512;    119,   137;    131,   4;    140,   152. 
Prob.  Act,  sec.  120.     En.  April  22,  1850.    Rep.  1851,  489. 
En.  1851,  448. 
Cal.  Rep.  Cit.  29,  513. 

§  1465.  Ail  property  exempt  from  execution  to  be  set 
apart  for  use  of  family.  Upon  the  return  of  the  inventory, 
or  at  any  subsequent  time  during  the  administration,  the 
court  may,  on  its  own  motion,  or  on  petition  therefor,  set 
apart  for  the  use  of  the  survivin-g  husband  or  wife,  or,  in 
case  of  his  or  her  death,  to  the  minor  chiMren  of  the 
decedent,  all  the  property  exempt  from  execution,  including 


§  1466  PROVISION    FOR   FAMILY.  MIt 

the  homestead  selected,  designated,  and  recorded;  provided 
such  homestead  was  selected  from  the  common  property, 
or  from  the  separate  property,  of  the  persons  selecting  or 
joining  in  the  selection  of  the  sajne.  If  none  has  been 
selected,  designated,  and  recorded,  or  in  case  the  homestead 
was  selected  by  the  survivor  out  of  the  separate  property 
of  the  decedent,  the  decodent  not  having  joined  therein, 
the  court  must  select,  designate,  and  set  apart,  and  cause 
to  be  recorded,  a  homestead  for  the  use  of  the  surviving 
husband  or  wife  and  the  minor  children;  or  if  there  be  no 
surviving  husband  or  wife,  then  for  the  use  of  the  minor 
children,  in  the  manner  provided  in  article  two  of  this 
chapter,  out  of  the  common  property,  or  if  there  be  no 
common  property,  then  out  of  the  real  estate  belonging  to 
the  decedent.    En.  March  11,  1872.    Am'd.  1880,  87. 

Cal.  Rep.  Cit.  47,  80;  50,  541;  50,  545;  50,  546;  53,  719 
54,  227;  63,  37;  65,  86;  65,  87;  69,  245;  69,  460 
72,  594;  72,  597;  73,  587;  73.  591;  74,  616;  75,  381 
76,  229;  77.  644;  78,  476;  78,  484;  80,  72;  80,  210 
81,  244;  81,  580;  81,  581;  81,  583;  82,  9;  85,  75 
86,  153;  86,  154;  93,  619;  94,  337;  94,  339;  94,  340 
96,  438;  98,  4S0;  99,  450;  100,  324;  100,  325;  100,  597 
100,  604;  104.  100;  106,  430;  108,  467;  108,  G55;  109,526 
114,  84;  117,  354;  117,  512;  120,  427;  121,  354;  121.  653 
121,  654;  122,  330;  122,  437;  122,  438;  122,  440;  128,  401 
128,  383;  128,  387;  128,  673;  131,  4;  134,  96;  139,  72 
139,  150;  140,  152;  144,  147;  145,  45;  145,  238;  145,  402 
145,  778;  145,  781. 
Prob.   Act,  sec.  121.     En.   April  22,  1850.     Rep.  1851,  489. 

En.   1851,  448.     Am'd.  1861,  636;    1866,  851;   1868,  172;    1870, 

400. 

Cal.  Rep.  Cit.     29,  103;   85,  312;   35,  313;  35,  814;  35,  315; 

35,  324;   37,  181;   43,  642;   45,  698. 
Appeal  from  order  setting  apart  homsetead  or  refusing 

so  to  do:   Ante,  sec.  963. 

§  1466.  May  make  extra  allowance.  If  the  amount  set 
apart  be  insufficient  for  the  support  of  the  widow  and  chil- 
dren, or  either,  the  court  or  a  judge  thereof  must  make 
such  reasonable  allowance  out  of  the  estate  as  shall  be 
necessary  for  the  maintenance  of  the  family,  according  to 
their  circumstances,  during  the  progress  of  the  settlement 
of  the  estate,  whiich,  in  case  of  an  insolvent  estate,  must 
not  be  longer  than  one  year  after  granting  letters  testa- 
mentary or  of  administration.  En.  March  11,  1872.  Am'd. 
1880,  87. 


M  PROVISION    FOR    FAMIt^Y.  §§  1467,  146S 

Cal.  Rep.  Clt.  57,  459;  60,  G50;  67,  350;  73,  5S3;  73,  587 
73,  589;  77,  644;  93,  619;  96,  438;  100,  170;  100,  325 
100,  602;  100,  603;  100,  605;  106,  430;  106,  432;  108,  467 
114,  79;  117,  512;  122,  438;  122,  440;  128.  383;  131,  4 
131,  292;  145,  560. 

Prob.  Act,  sec.  122.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  636. 

Cal.  Rep.  Clt.  73,  588. 

§  1467.  Payment  of  allowance.  Any  allowance  made 
by  the  court  or  judge.  In  accordance  with  the  provisions  of 
this  article,  must  be  paid  In  preference  to  all  other  charges, 
except  funeral  charges  and  expenses  of  administration; 
and  any  such  allowance,  whenever  made,  may,  in  the  dis- 
cretion of  the  court  or  Judge,  take  effect  from  the  •death  of 
the  decedent.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  52,  577;   57,  459;   73,  583. 

Prob.  Act,  sec.  123.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  636;  1864,  370. 

Cal.  Rep.  Cit.  29,  372. 

§  1468.  Property  set  apart,  how  apportioned  between 
widow  and  children.  When  property  Is  set  apart  to  the 
use  of  the  family,  in  accordance  with  the  provisions  of  this 
chapter,  If  the  decedent  left  a  widow  or  surviving  husband, 
and  no  minor  child,  such  property  Is  the  property  of  the 
widow  or  survivln'g  husband.  If  the  decedent  left  also  a 
minor  child  or  children,  the  one-half  of  such  property  shall 
belong  to  the  widow  or  surviving  husband,  and  the  remain- 
der to  the  child,  or  In  equal  shares  to  the  children,  if  there 
he  more  than  one.  If  there  be  no  widow  or  surviving  hus- 
band, the  whole  belongs  to  the  minor  child  or  children. 
If  the  property  set  apart  be  a  homestead,  selected  from  the 
separate  property  of  the  deceased,  the  court  can  only  bet 
Ir.  apart  for  a  limited  period,  to  be  designated  in  the  order, 
and  the  title  vests  in  the  heirs  of  the  deceased,  subject 
to  such  order.  En.  March  11,  1872.  Am'd.  1873-4,  361;  1880, 
87;  1881,  8. 
Cal.  Rep.  Clt.  50,  542;    65,  87;   78,  593;   73,  594;   74,  617; 

80,    73;    81,    580;    82,    10;    86,    153;    86,    154;    93,    293; 

93,    294;    94,   337;    94.    338;    94,   339;    94,   340;    96,   438; 

100,  170;  104,  100;  108,  653;  114,  87;  120,  427;  120,  428; 

121,  268;  121,  655;  128,  673;  139,  72;  189,  150;  189,  151; 

141.  648;  144,  146;  144,  654;  145,  240. 
Prob.   Act,  sec.   125.     En.  April  22,  1850.     Rep.  1851,  489, 
En.  1851,  448. 


J§  116'>,  U70  PROVISION    FOR    FAMILY.  660 

Cal.   Rop.  Clt.     29,  104;   29.  372;   35,  32r;;   35,  324;   43.  C42; 
43,  C43. 

Where  widow  has  a  maintenance:  Post.  sec.  1470. 

6  1469.  Administration  when  estate  does  not  exceed 
$1,500.00.  If,  upon  the  return  of  the  Inventory  of  the  estate 
of  a  deceased  person,  It  shall  appear  therefrom  that  the 
value  of  the  whole  estate  does  not  exceed  the  sum  of 
fifteen  hundred  dollars,  and  If  there  be  a  widow  or  minor 
children  of  the  deceased,  the  court,  or  a  judge  thereof, 
shall,  by  order,  require  all  persons  Interested  to  appear 
on  a  day  fixed,  to  show  cause  why  the  whole  of  said  estate 
should  not  be  assigned  for  the  use  and  support  of  the  family 
of  the  deceased.  Notice  thereof  shall  be  given  and  proceed- 
ings had  In  the  same  manner  as  provided  In  sections  one 
thousand  six  humlred  and  thirty-three,  one  thousand  six 
hundred  and  thirty-five,  and  one  thousand  six  hundred  and 
thirty-eight  of  this  code.  If,  upon  the  hearing,  the  court 
finds  that  the  value  of  the  estate  does  not  exceed  the  sum 
of  fifteen  hundred  dollars.  It  shall,  by  decree  for  that  pur- 
pose, assign  to  the  widow  of  the  deceased.  If  there  be  a 
widow.  If  no  widow,  then  to  the  minor  children  of  the  de- 
ceased, If  there  be  minor  children,  the  whole  of  the  estate, 
Efubject  to  whatever  mortgages,  liens,  or  encumbrances  there 
may  be  upon  said  estate  at  the  time  of  the  death  of  the 
deceased,  after  the  payment  of  the  expenses  of  the  last 
illness  of  the  deceased,  f^ineral  charges,  and  expenses  of 
administration,  and  the  title  thereof  shall  rest  absolutely 
In  such  widow  or  minor  children,  subject  to  whatever  mort- 
gages, liens,  or  encumbrances  there  may  be  upon  said 
estate  at  the  time  of  the  death  of  the  deceased,  and  there 
must  be  no  further  proceedings  In  the  administration, 
unless  further  estate  be  discovered.  En.  March  11.  1872. 
Am'd.  1875-6.  102;    1880,  88:   1897,  7. 

Cal.  Rep.  Clt.  57,  459;   63,  404;   64,  251;  100.  170;  116,  580; 
116,  581;  lis,  72;  123,  467;  126,  577;  126,  578;  127.  334: 
127,  429;  133,  528;  139,  71;   139,  72;  143,  523. 
Prob.  Act,  sec.  126.     En.  April  22,  1850.     Rep.  1851,  489. 
En.   1851.  448.     Am'd.  1861,  636. 
Cal.  Rep.  Cit  29,  372. 

Act  authorizing  next  of  kin  of  decedent  to  collect  deposit 
in  bank  of  less  than  five  hundred  dollars:  See  post,  Ap- 
pendix, title  Estates  of  Deceased  Persons. 

§  1470.  When  all  property  other  than  homestead  to  go 
to  children.    If  the  widow  has  a  maintenance  derived  from 


B51  PROVISION    FOR    FAMILY.  {  1474 

her  own  property  equal  to  the  portion  set  apart  to  her  by 
the  preceding  sections  of  this  article,  the  whole  property  so 
set  apart,  other  than  the  homestead,  must  go  to  the  minor 
children.     En.  March  11,  1872.     Am'd.  1880,  88. 

Prob.  Act.  sec.  127.     En.  April  22,  1850.     Rep.  1851,  48». 
En.  1851,  448. 


ARTICLE  II. 

OF    THE!    HOMESTEAD. 

5  1474.     Rights   of   survivor   to   hompstead. 

§  1475.     Selected    and    recorded    homestead    set   off   to   person    entitled. 
Subsisting  liens   to  be  paid  by   solvent   estate. 

§  1476.  Appraisers  to  carve  out  of  the  original,  excoedlng  five  thou- 
sand  dollars  In   value,   a  homestead,    and   report   the   same. 

§  1477.  Beport  of  the  appraisers.  Majority  and  minority,  whloh  may 
be  confirmed. 

§  1478.  Day  to  be  set  for  confirming  or  rejecting  the  report  of  the  ap- 
praisers.    Appeal. 

g  1479.  If  report  rejected,  other  appraisers  appointed.  If  again  re- 
jected,   partition    suit    to    be    brought.     (Repealed.) 

g  14S0.  Instead  of  dividing  the  homestead,  who  may  take  a  deed  there- 
of  at   appraised    value.     (Repealed.) 

g  1481.  If  no  homestead  Is  selected  and  recorded  prior  to  death  of  de- 
cedent,   one   may   be   petitioned  for.     (Repealed.) 

g  14S2.  Court  to  direct  partition  suit  in  the  dlstriot  court,  when.  Pro- 
ceedings   thereon.     (Repealed.) 

g  1483.  If  property  is  common  or  separate,  court  to  cause  appraisement 
and    admea.iurement   to   be   made.     (Repealed.) 

g  1484.  New  appraisement,  when  ordered.  Instead  of  deeding  property 
at  appraised  value,  public  sale  to  b«  orfierevS  when.  (Re- 
pealed.) 

g  1485.  Costs,  to  whom  chargeable.  Persons  succeeding  to  rights  or 
homestead    owners    have   all    their   powers   and    rights. 

g  1486.    Certified  copies  of  certain  orders  to  be  recorded. 

§  1474.  Rights  of  survivor  to  homestead.  If  the  home- 
stead selected  by  the  husband  and  wife,  or  either  of  them, 
during  their  coverture,  and  recorded  while  both  were  living, 
was  selected  froon  the  community  property,  or  from  the 
separate  property  of  the  person  selecting  or  Joining  in  the 
selection  of  the  same.  It  vests,  on  the  death  of  the  husband 
or  wife,  absolutely  in  the  sun'ivor.  If  the  homestead  was 
selected  from  the  separate  property  of  either  the  husband 
or  the  wife,  without  his  or  her  consent.  It  vests,  on  the 
death  of  the  person  from  whose  property  It  was  selected, 
in  his  or  her  heirs,  subject  to  the  povver  of  the  superior 
court  to  assign  it  for  a  limited  period  to  the  family  of  the 


§§  1175.  1176  PROVISION    lAJR    FAMILY.  tU 

decedent.     In  either  case  It  is  not  subject  to  the  payment 
of  any   debt  or  liability  contracted  by  or  existing  against 
the  husband  and  wife,  or  either  of  them,  previous  to  or  at 
the  lime  of  the  death  of  such  husband  or  wife,  except  as 
provided   in   the  Civil   Code.     En.   March  11,  1872.     Am'd. 
1873-4,  3C2;   1S80,  88. 
Cal.  Rep.  Cit.     50,  543;   52,  297;   52,  298;   76,  641;  79,  11 
80,    209;    81,    243;    81.    580;    82.   10;    83.   442;    85,   621 
8G.    153;    92,   371;    92,   372;    94.   339;    95,   403;    95,  406 
95.  407;   102,  341;   108,  054;   113,  31;  117,  409;  118,  300 
119,  CCC;  121,  653;  121,  C54;  132,  611;  132,  G13;  139,  72 
139,   151;    142,  474;    144,  619;    144,  653;    144,  655;    146, 
107;    146,  431. 
Homestead — Generally,    and    setting    ajpart:     Ante,    sec. 
1465. 

§  1475.     Selected  and  recorded  homestead  set  off  to  per- 
6on  entitled.     Subsisting  liens  to  be  paid  by  solvent  estate. 
If  the  homestead  selected  and  recorded  prior  to  the  death 
of  the  decedent  be  returned  in  the  inventory  appraised  at 
not  exceeding  five  thousand  dollars  in  value,  or  was  pre- 
viously appraisod  as  provitlod  in  the  Civil  Code,  and  sucb 
appraised    value    did    not    exceed    that   eum,    the    superior 
court   must,  by   order,   set  it  off  to  the  persons  in   whom 
title  is  vested  by  the  preceding  section.     If  there  be  sub- 
sisting liens  or  encumbrances  on  the  homestead,  the  claims 
secured   thereby   must  be   presented   and  allowed   as  other 
claims   against  the  estate.     If  the  funds   of  the  estate  be 
adequate  to  pay  all  claims  against  the  estate,  the  claims 
BO  secured  must  be  pai-d  out  of  such  funds.     If  the  funds  of 
the   estate  be   not   suflicient  for  that   purpose,   the   claims 
60  secured  shall  be  paid  proportionately  with  other  claims 
allowed,  and  the  liens  or  encumbrances  on  the  homestead 
shall    only   be   enforced    against    the    homestead    for    any 
defiiciency   remaining  after  such   payment.     En.   March  11, 
1872.     Ajn'd.  1873-4,  3C2;  ISSO,  88. 
Cal.   Rep.   Cit.    54,  228;    62,  26;    64,  78;    65,  87;    72,  547 
79,    10;    79,    11;    80,    209;    81,    580;    83,    442;    83,    443 
83,  444;   86,  122;    86,  350;    99,  507;     99,  508;    106,  204 
109,  67;   109,  68;   109,  69;   109,  428;   109,  429;   112,  266 
121,   653;    127.  277;    132,  428;    136,  527;    142,  476;    144, 
664;   146,  107. 

§  1476.  Appraisers  to  carve  out  of  t!ie  original,  exceed- 
ing five  thousand  dollars  in  value,  a  homestead,  and  report 
the  same.    If  the  homestead,  as  selected  and  recorded,  be 


55J  PROVISION   FOR   FAMILY.  J§  1477,  1478 

returned  in  the  inventory  appraised  at  more  than  five 
thousand  dollars,  the  appraisers  must,  before  they  make 
their  return,  ascertain  an-d  appraise  the  value  of  the 
homestead  at  the  time  the  same  was  selected,  and  if  such 
value  exceeded  five  thousand  dollars,  or  if  the  homestead 
was  appraised  as  provided  in  the  Civil  CcKle,  and  such 
appraised  value  exceeded  that  sum,  the  appraisers  must 
determine  whether  the  premises  can  be  -divided  without 
material  injury,  and  if  they  find  that  they  can  be  thus 
divided,  they  must  admeasure  and  set  apart  to  the  parties 
entitled  thereto,  such  portion  of  the  premises,  including 
the  dwellin^^-hcruse,  as  will  amount  in  value  to  the  sum 
of  five  thousand  dollars,  and  make  report  thereof,  giving 
the  metes,  bounds,  and  full  description  of  the  portion  set 
apart  as  a  homestead.  If  the  appraisers  find  that  the 
premises  exceeded  in  value,  at  the  time  of  their  selection, 
the  sum  of  five  thousand  dollars,  and  that  they  cannot 
be  divided  without  material  injury,  they  must  report  such 
finding,  and  thereafter  the  court  may  make  an  order  for 
the  sale  of  the  premises  and  the  distribution  of  the  pro- 
ceeds to  the  parties  entitled  thereto.  En.  March  11,  1872. 
Am'd.  1873-4,  363. 

Cal.  Rep.  Cit.  TS,  594;  76,  641;  81,  580;  81,  583;  122,  331; 
144,  662;   144,  664. 

Appraisement — Generally:   Ante,  sec  1444. 

§  1477.  Report  of  the  appraisers.  Majority  and  minority, 
which  may  be  confirmed.  Any  two  of  the  appraisers  con- 
curring may  discharge  the  duties  imposed  upon  the  three, 
and  make  the  report.  A  dissenting  report  may  be  made 
by  the  third  appraiser.  The  report  must  state  fully  the 
acts  of  the  appraisers.  Both  reports  may  be  heard  and 
considered  by  the  court  in  determining  a  confirmation  or 
rejection  of  the  majority  report,  but  the  minority  report 
must  in  no  case  be  confirmed.     En.  March  11,  1872. 

Cal.  Rep.  Cit     144,  662. 

§  1478.  Day  to  be  set  for  confirming  or  rejecting  the  re- 
port of  the  appraisers.  Appeal.  When  the  report  of  the 
appraisers  is  filed,  the  court  must  set  a  day  for  hearing  any 
objections  thereto,  from  anyone  interested  in  the  estate. 
Notice  of  the  hearing  must  be  given  for  such  time,  and  in 
such  manner  as  the  court  may  direct:.  If  the  court  be  satis- 
fled  that  the  report  is  correct,  it  must  be  confirmed,  other- 
wise rejected.  In  case  the  report  is  rejected,  the  court 
may  appoint  new  appraisers  to  examine  and  report  upon 


5§  1«9-H86  PROVISION    FOH    FAMILY.  K>i 

the   homestead,   and   similar   proceedings   may   be   hr.d   for 
the  confirmation  or  rejection  of  their  report  as  upon  the 
first  report.     En.   March  11,  1872.     Am'd.  1873-4,  3C3. 
Cal.  Rep.  Cit.     144,  6C2. 

§  1479.     En.  March  11,  1872.    Rep.  1873-4,  364. 
Cal.  Rep.  Cit.     144,  6C2. 

S  1480.     En.   March   11,   1872.     Rep.   1873-4,   364. 
Cal.  Rep.  Cit.     99,  451;   144,  662. 

5  1481.     En.   March   11,   1872.     Rep.   1878-4,   364. 
Cal.  Rep.  Cit.     47,  80;  72,  596;  144,  662. 

§  1482.     En.   March   11,  1872.     Rep.   1873-4,   364. 
Cal.  Rep.  Cit.     144,  662. 

§  1483.     En.  March   11,  1872.     Rep.  1873-4,.  364. 
Cal.  Rep.  Cit.     144.  GC2. 

5  1484.     En.  March  11,  1872.     Rep.  1873-4,  364. 
Cal.  Rep.  Cit.     99,  451;  144,  662. 

§  1485.  Costs,  to  whom  chargeable.  Persons  succeed- 
ing to  rights  of  homestead  owners  have  all  their  powers 
and  rights.  The  costs  of  all  proceedings  in  the  superior 
court  provided  for  in  this  chapter,  must  be  paid  by  the 
estate  as  expenses  of  atlTninistration.  Persons  succeeding 
by  poirchase  or  otherv,  ise  to  the  interests,  rights,  and  title 
of  su-ccessors  to  homestea-ds,  or  to  the  right  to  have  home- 
steads set  apart  to  them,  as  in  this  chapter  provided,  have 
all  the  rights  and  benefits  conferred  by  law  on  the  persons 
whose  interests  and  rights  they  acquire.  En.  March  11, 
1872.     Am'd.  1880,  89. 

Cal.  Rep.  Cit.     57,  443;  57,  444;  100,  166;  132,  612;  132,  613; 
144,  662, 

§  1486.     Certified  copies  of  certain  orders  to  be  recorded. 

A  certified  copy  of  every  final  order  made  in  pursuance  of 
this  article,  by  which  a  report  is  confirmed,  property 
assigned,  or  sale  confirmed,  must  be  recorded  in  the  office 
of  the  recorder  of  the  county  where  the  homestead  prop- 
erty is  situated.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     144,  662. 

Certified  copy — Recording:  Post,  sec.  1719. 


555  CLAIMS    AGAINST   KSTATB.  §  1490 


CHAPTER  VI. 

OF   CLAIMS    AGAINST   THE    ESTATE. 

§  1190.     Notice    to   creditors.     Additional   notice. 

S   H:i1.     Time   expressed   in    the    notice. 

§  1402.     Copy  ajid   proof  oi  nutlce   to  be  filed  and  order   made. 

§  WM.  Time  within  which  claims  against  an  estate  must  be  pre- 
sented. 

§  14S4.  Claims  to  be  sworn  to,  and  when  allowed,  to  bear  same  inter- 
est as  judgments 

§  1135.     Superior   judge   may   present   claim,    and   action    thereon. 

§  1496.     Allowance  and   rejection   of  claims. 

I  1437.  Approve  claims  or  copies  to  be  filed.  Claims  secured  by 
Hens    may    be   described.     Lost   claims. 

§  1498.     Rejected    claims   to   be  sued   for  within   three   months. 

§  1499.  Claims  barred  by  statute  of  limitations.  When  and  whom 
Judge   may   examine. 

§  1500.     Claims    must    be    presented   before    suit. 

5  1.501.     Time   of   limitation. 

§  1502.    Claims  In  action  pending  at  time  of  decease. 

§  1503.     Allowance    of    claim    in    part. 

§  1504.     Effect   of  judgment   against   executor. 

§  1505.  Execution  not  to  issue  after  death.  If  one  Is  levied  the  prop- 
erty  may   be  sold. 

§  1506.    What  judgment   Is   not   a  Hen   on   real   property   of   estate. 

§  1507.  May  refer  doubtful  claims.  Effect  of  referee's  allowance  or 
rejection. 

§  1508.    Trial  by  referee,  how  confirmed  and  Its  effect. 

§  1509.     Liability   of  executor,    etc.,    for  costs. 

§  1510.     Claims   of  executor,    etc.,    against   estate. 

§  1511.     Executor  neglecting   to   give   notice   to  creditors,    to  be  removed. 

5  1.t12.     Executor  to   return   statement  of  claims. 

§  1513.     Payment    of    Interest-bearing    claims. 

§  1514.    Proceedings    where    claimant    cannot    be    found. 

§  1490.  Notice  to  creditors.  Additional  notice.  Every 
executor  or  administrator  must,  immediately  after  his 
appointment,  cause  to  be  published  in  some  newspaper  of 
the  county,  if  there  be  one,  if  not,  then  in  such  newspaper 
as  may  be  designated  by  the  court,  a  notice  to  the  creditors 
of  the  decedent,  requiring  all  persons  having  claims  against 
him  to  exhibit  them,  with  the  necessary  vouchers,  to  the 
executor  or  administrator,  at  the  place  of  his  residence  or 
business,  to  be  specified  in  the  notice.  Such  notice  must  be 
published  as  often  as  the  judge  or  court  shall  direct,  but. 
not  less  than  once  a  week  for  four  weeks.  The  court 
or  judge  may  also  direct  additional  notice  by  publication  or 
posting.  In  case  such  executor  or  administrator  resigns,  or 
is   removed,  before  the   time   expressed  in  the  notice,  his 


§§  1491-14SJ  CLAIMS    AGAINST    ESTATE.  K« 

successor  must  give  notice  only  for  the  unexpired  time 
allowed  for  such  presentation.     En.  March  11,  1872. 

Cal.  Rep.  Cit  59,  43;  67.  639;  79,  12;  88.  33;  105,  668; 
111,  458;  111,  542;  119,  450;  127,  153;  14(,  108;  147, 
110. 

Prob.  Act,  sec.  128.  En.  April  22.  1850.  Rep.  1851,  489. 
En.  1851.  448.     Am'd.  1861,  636. 

Cal.  Rep.  Cit.     21,  31;    38,  87;    55,  582. 

Publication  of  notice — How  often:   Post,  sec.  lioo. 

Two  months'  neglect — To  give  notice,  causes  revocation 
of  letters:   Post,  sec.  1511. 

§  1491.  Time  expressed  In  the  notice.  The  time  ex- 
pressed in  the  notice  must  be  ten  months  after  its  first 
publication  when  the  estate  exceeds  in  value  the  sum  of 
ten  thousand  dollars,  and  four  months  when  it  does  not. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.  59,  43;  77,  187;  88,  32;  105,  668;  112, 
81;    119,  451;    147,  108;    147,  110. 

§  1492-  Copy  and  proof  of  notice  to  be  filed  and  order 
made.  After  the  notice  is  given,  as  required  by  the  pre- 
ceding section,  a  copy  thereof,  with  the  afl&davit  of  due 
publication,  or  of  publication  and  posting,  must  be  filed, 
and  upon  such  affidavit  or  other  testimony  to  the  satisfac- 
tion of  the  court,  an  order  or  decree  showing  that  due 
notice  to  creditors  has  been  given,  and  directing  that  such 
order  or  decree  be  entered  in  the  minutes  and  recorded, 
must  be  made  by  the  court.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     Ill,  543;    147,  116. 

Prob.  Act,  sec  129.  En.  April  22,  1850.  Rep.  1851,  489. 
Ku.  1851,  448.     Am'd.  1861,  637. 

Affidavit  of  publication  of  notice:   Post,  sees.  2010,  2011. 

§  1493.  Time  within  which  claims  against  an  estate 
must  be  presented.  All  claims  arising  upon  contracts, 
whether  the  same  be  due,  not  due,  or  contingent,  must 
be  presented  within  the  time  limited  in  the  notice,  and 
any  claim  not  so  presented  is  barred  forever;  provided, 
however,  that  when  it  is  made  to  appear  by  the  affidavit 
of  the  claimant,  to  the  satisfaction  of  the  court,  or  a 
judge  thereof,  that  the  claimant  had  no  notice  as  provWed 
in  this  chapter,  by  reason  of  being  out  of  the  state,  it  may 
be  presented   at  any  time  before  a  decree  of  distribution 


557  CLAIMS    AGAINST    ESTATE.  |  MR 

Is  entered.  En.  March  11,  1872.  Am'd.  1873-4,  364;  1880. 

89. 

Cal.  Rep.  Clt.  52,  235;  53,  85;  55,  584;  56,  299;  56,  300 
56,  302;  56,  304;  59,  43;  66,  531;  72,  18;  77,  187 
79,  10;  85,  443;  86,  440;  90,  395;  92,  435;  95,  107 

95,  168;  95,  169;  95,  437;  95,  438;  98,  469;  96,  470 

96,  474;  96,  476;  99,  503;  99,  507;  lOG,  204;  109,  66 
109,  425;  110,  83;  112,  84;  115,  464;  116,  664;  119, 
66;  124,  574;  127,  592;  128,  392;  132,  152;  142,  594. 

Prob.  Act,  sec.  130.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1860,  17. 

Cal.  Rep.  Cit.  18,  427;  18,  430;  24,  497;  24,  501;  S4, 
264;  42,  497;  42,  506;  43,  494;  45,  436;  96,  469;  96, 
470;  96,  476;  142,  475. 

Claim — Action  none,  unless  claim  presented:  Sec.  1500; 
after  reiection:  Sec.  1498;  pending  at  death,  claim  must 
be  presented:  Sec.  1502;  affidavit:  Sec.  1494;  allowance 
or  rejection  of:  Sees.  1496-1498,  1503;  contingent:  Sec. 
1648;  executor,  action  by:  Sec.  1510;  judgment  on:  Sees. 
1504,  1509;  interest  on:  Sees.  1494,  1513;  judge  of  superior 
court  may  present:  Sec.  1495;  judgment  against  decedent: 
Sec.  1505;  on  mortgage  or  lien:  Sec.  1500;  action  barred 
by  statute:  Sees.  1499,  1501;  examination  by  judge:  Sec. 
1499;  on  mortgage,  or  lien.  Sec.  1500;  reference  of:  Sec. 
1507;   statement  of  claims:   Sec.  1512. 

§  1494.  Claims  to  be  sworn  to,  and  when  allowed,  to 
bear  same  interest  as  judgments.  Every  claim  which  is 
due,  when  presented  to  the  executor  or  administrator, 
must  be  supported  by  the  affidavit  of  the  claimant,  or  some 
one  in  his  behalf,  that  the  amount  is  justly  due,  that  no 
payments  have  been  made  thereon  which  are  not  credited, 
and  that  there  are  no  offsets  to  the  same,  to  the  knowl- 
edge of  the  affiant.  If  the  claim  be  not  due  when  pre- 
sented, or  be  contingent,  the  particulars  of  such  claim 
must  be  stated.  When  the  affidavit  is  made  by  a  person 
other  than  the  claimant,  he  must  set  forth  in  the  affidavit 
the  reason  why  it  is  not  made  by  the  claimant.  The  oath 
may  be  taken  before  any  officer  authorized  to  administer 
oaths.  The  executor  or  administrator  may  also  require 
satisfactory  vouchers  or  proofs  to  be  produced  in  support 
of  the  ^laim.  If  the  estate  be  insolvent  no  greater  rate 
of  interest  shall  be  allowed  upon  any  claim  after  the  first 
publication  of  notice  to  creditors  than  is  allowed  on  judg- 


§J  Hri5,  \\%  CLAIMS    AGAINST    ESTATE.  658 

ments  obtained  in  the  superior  court.     En.  March  11,  1S72. 
Am'd.  1873-4,  365;    1880,  89. 
Cal.    Rep.    Cit.     52,  577;     56,  464;     56,   4G5;     58.  353;     67, 
642;     72,  18;     86,  350;     91,  605;     92,  435;     96,  470;    96, 
471;     103,   155;    126,   455;     126,  456;    127,   59;     127.   60; 
127,  116;     133,  410;     133,  411;     134,  29;    135,  352;    146, 
200. 
Prob.  Act,  sec.  131.     En.  April  22,  1850.     Rep.   1851,  489. 
En.  1851,  448.     Am'd.  1860,  17;    1861,  637. 

Cal.  Rep.  Cit.     9,  636;     18.  427;    18,  430;     21,  31;     22.  99; 
27,  354;    27,  355;    27,  357;    42,  178;    43,  494;    46,  ICO; 
55,  579;    56,  301;    56,  302;    96,  470;    96,  471. 
Claim  on  mortgage  or  lien:  Post,  sec.  1500. 
Claim  paid  without  afEdavit  and  allowance  when  allowed 
executor:   See  post,  sec.  1632. 

§  1495.  Superior  judge  may  present  claim,  and  action 
thereon.  Any  judge  of  a  superior  court  may  present  a 
claim  against  the  estate  of  a  decedent  for  allowance  to 
the  executor  or  administrator  thereof,  and  if  the  execu- 
tor or  administrator  allows  the  claim,  he  must  in  writing 
designate  some  other  judge  of  the  superior  court  of  the 
same  or  an  adjoining  county,  who,  upon  the  presentation 
of  such  claim  to  him,  is  vested  with  power  to  allow  or  re- 
ject it,  and  the  judge  presenting  such  claim,  in  case  of  its 
rejection  by  the  executor  or  administrator,  or  by  such 
judge  as  shall  have  acted  upon  it,  has  the  same  right  to 
sue  in  a  proper  court  for  its  recovery  as  other  persons 
have  when  their  claims  against  an  estate  are  rejected. 
En.  March  11,  1872.     Am'd.  1880,  90. 

Cal.  Rep.  Cit    120,  651. 

§  1496.  Allowance  and  rejection  of  claims.  When  a 
claim,  accompanied  by  the  affidavit  required  in  this  chap- 
ter, is  presented  to  the  executor  or  administrator,  he  must 
indorse  thereon  his  allowance  or  rejection,  with  the  day 
and  date  thereof.  If  he  allow  the  claim,  it  must  be  pre- 
sented to  a  judge  of  the  superior  court  for  his  approval, 
who  must  in  the  same  manner  indorse  upon  it  his  allow- 
ance or  rejection.  If  the  executor  or  administrator,  or  the 
judge,  refuse  or  neglect  to  indorse  such  allowance  or  re- 
jection for  ten  days  after  the  claim  has  been  presented  to 
him,  such  refusal  or  neglect  may,  at  the  option  of  the 
claimant,  be  deemed  equivalent  to  a  rejection  on  the 
tenth  day;   and  if  the  presentation  be  made  by  a  notary. 


B59  CLAIMS    AGAINST    ESTATE.  5  1497 

the  certificate  of  such  notary,  under  seal,  shall  be  prima 
facie  evidence  of  such  presentation  and  the  date  thereof. 
If  the  claim  be  presented  to  the  executor  or  administrator 
before  the  expiration  of  the  time  limited  for  the  presenta- 
tion of  claims,  the  same  is  presented  in  time,  though  acted 
upon  by  the  executor  or  administrator,  and  by  the  judge, 
after  the  expiration  of  such  time.  If  the  claim  be  payable 
in  a  particular  kind  of  money  or  currency,  it  shall,  if  al- 
lowed, be  payable  only  in  such  money  or  currency.  En. 
March  11,  1872.     Am'd.  1873-4,  365;    1880,  90. 

Cal.  Rep.  Cit.  66,  531;  66,  533;  67,  148;  72,  189;  98, 
483;  98,  485;  116,  669;  127,  193;  127,  475;  129,  478. 
Prob.  Act,  sec.  132.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  637. 
Cal.  Rep.  Cit.  6,  670;  18,  427;  18,  430;  29,  372;  34,  226. 
Judge  may  approve  claims  In  chambers:   Ante,  sec.  166. 

§  1497.  Approved  claims  or  copies  to  be  filed.  Claims 
secured  by  liens  may  be  described.  Lost  claims.  Every 
claim  allowed  by  the  executor  or  administrator,  and  ap- 
proved by  a  judge  of  the  superior  court,  or  a  copy  thereof, 
as  hereinafter  provided,  must,  within  thirty  days  there- 
after, be  filed  in  the  court,  and  be  ranked  among  the  ac- 
knowledged debts  of  the  estate,  to  be  paid  in  due  course 
of  administration.  If  the  claim  be  founded  on  a  bond, 
bill,  note,  or  any  other  instrument,  a  copy  of  such  instru- 
ment must  accompany  the  claim,  and  the  original  instru- 
ment must  be  exhibited,  if  demanded,  unless  it  be  lost  or 
destroyed,  in  which  case  the  claimant  must  accompany 
his  claim  by  his  affidavit,  containing  a  copy  or  particular 
description  of  such  instrument,  and  stating  its  loss  or  de- 
struction. If  the  claim,  or  any  part  thereof,  be  secured  by 
a  mortgage,  or  other  lien  which  has  been  recorded  in  the 
office  of  the  recorder  of  the  county  in  which  the  land  af- 
fected by  it  lies,  it  shall  be  sufficient  to  describe  the  mort- 
gage or  lien,  and  refer  to  the  date,  volume,  and  page  of 
its  record.  If,  in  any  case,  the  claimant  has  left  any  or- 
iginal voucher  in  the  hands  of  the  executor  or  adminis- 
trator, or  suffered  the  same  to  be  filed  in  court,  he  may 
withdraw  the  same  when  a  copy  thereof  has  been  already, 
or  is  then,  attached  to  his  claim.  A  brief  description  of 
every  claim  filed  must  be  entered  by  the  clerk  in  the  regis- 
ter, showing  the  name  of  the  claimant,  the  amount  and 
character  of  the  claim,  rate  of  interest,  and  date  of  allow- 
ance.    En.  March  11,  1872.     Am'd.  1880,  90. 


§§  14?8,  1499  CLAIMS    AGAINST    ESTATK.  WO 

Cal.  Rep.  Cit.  51,  217;  52,  577;  62,  415;  67,  ISO;  72,  489; 
82,  99;     85,  141;    8G,  32G;     96,  475;    109,  357;    112,  79; 

125,  362;   128,  392;   133,  299;   135,  352;  146,  193. 
Prob.   Act,  sec.  133.     En.  April  22,  1850.     Rep.  1851,  489. 

En.  1851,  448.     Am'd.  1860,  18;   1861,  638. 
Cal.   Rep.   Cit.     9,  636;    18,  428;    21,   29;    21,   31;    24,   501; 

27,  355;   27,  356;    29,  380;   46,  161;   46,  316. 
Claims  secured  by  mortgage,  etc.;  Post,  sec.  1500. 

§  1498.  Rejected  claims  to  be  sued  for  within  three 
months.  When  a  claim  is  rejected  either  by  the  executor 
or  administrator,  or  a  judge  of  the  superior  court,  the 
holder  must  bring  suit  in  the  proper  court  against  the 
executor  or  administrator  within  three  months  after  the 
date  of  its  rejection,  if  it  be  then  due,  or  within  two  months 
after  it  becomes  due,  otherwise  the  claim  shall  be  forever 
barred.     En.  March  11,  1872.     Am'd.  1880,  91. 

Cal.  Rep.  Cit.  67,  148;  67.  640;  79,  275;  79,  277;  93,  170; 
96,  470;  98,  485;  98,  486;  108,  292;  115,  464;  116,  654; 
116,  666;  124,  574;  127,  116;  127,  193;  127,  460;  129, 
478;  129,  479;  132,  457;  132,  458;  133,  300;  133,  301; 
136,  13;   145,  524;   145,  525. 

Prob.  Act,  sec.  134.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

Cal.  Rep.  Cit.     18,  428;  18,  430;  21,  29;  34,  226;   96,  470. 

Time  for  bringing  suit:  Post,  sec.  1501. 

Statute  of  limitations,  generally:  Ante,  sees.  335-363; 
Tacancy  in  administration  does  not  affect:  Post,  sec.  1501. 

Time  for  bringing  action  after  death:  Ante,  sec.  353. 

§  1499.  Claims  barred  by  statute  of  limitations.  When 
and  whom  judge  may  examine.  No  claim  must  be  allowed 
by  the  executor  or  administrator,  or  by  a  judge  of  the 
superior  court,  which  is  barred  by  the  statute  of  limita- 
tions. When  a  claim  is  presented  to  a  judge  for  his  allow- 
ance, he  may,  in  his  discretion,  examine  the  claimant  and 
others  on  oath,  and  hear  any  legal  evidence  touching  the 
validity  of  the  claim.     En.  March  11,  1872.    Am'd.  1880,  91. 

Cal.  Rep.  Cit.    66,  190;  66,  531;   66,  532;  77,  187;  110,  84; 

126,  456;    127,  193;    127,  592;    128,  338;    132,   454;    133, 
407. 

Prob  Act,  sec.  135.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1864,  370. 
Cal.  Rep.  Cit.  2,  386;  18,  428;  56,  302. 


KL  CL-^IMS    AGAINST    ESTATE.  §§  1500-1502 

§  1500.  Claims  must  be  presented  before  suit.  No 
holder  of  any  claim  against  an  estate  shall  maintain  any 
action  thereon,  unless  the  claim  is  first  presented  to  the 
execQtor  or  administrator,  except  in  the  following  case: 
An  action  may  be  brought  by  any  holder  of  a  mortgage 
or  lien  to  enforce  the  same  against  the  property  of  the 
estate  subject  thereto,  where  all  recourse  against  any 
other  property  cf  the  estate  is  expressly  waived  in  the 
complaint,  but  no  counsel  fees  shall  be  recovered  in  such 
action  unless  such  claim  be  so  presented.  En.  March  11, 
1872.     Am'd.  1873-4,  366;   1875-6,  103. 

Cal.  Rep.  Cit.     52,  235;   56,  299;   56,  302;   56,  303;   56,  304 
57,   408;     62,   26;     65,    575;    66,   531;    67,   180;     77,   56 
77,   187;     79,    10;    79,    12;     79,    410;    82,    99;     83,    443 
85,   443;    86,   327;    90,   395;    90,   396;    95,   167;    95,    437 
95,   438;    96,   469;    96,   473;     98,   486;    89,   507;    99,   508 
99,  509;   100,  553;   105,  47;   106,  204;   106,  205;   109,  67 
109,   68;    109,  69;    110,   83;    110,  338;    112,  78;    116,  357 
119,  66;  119,  67;  121,  656;  124,  231;  124,  574;  125,  361 
127,   54;    127,   192;    127,   277;    129,   478;    131,   673;    132, 
602;  133,  95;  133,  98;  135,  352;  136,  13;  146,  656. 
Prob.  Act,  sec.  136.     En.  April  22,  1850.     Rep.   1851,  489. 
En.  1851,  448. 

Cal.  Rep.   Cit.     6,  393;    18,  428;    21,  29;    24,   501. 
With  respect  to  encumbrances  upon  the  homestead:   See 
sec.   1475,   ante. 

§  1501.  Time  of  limitation.  The  time  during  which 
there  shall  be  a  vacancy  in  the  administration  must  not  be 
included  in  any  limitations  herein  prescribed.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     129,  478. 

Prob.  Act,  sec.  137.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,    448. 

§  1502.     Claims  in  action  pending  at  time  of  decease.     If 

an  action  Is  pending  against  the  decedent  at  the  time  of 
his  death,  the  plaintiff  must  in  like  manner  present  his 
claim  to  the  executor  or  administrator  for  allowance  or 
rejection,  authenticated  as  required  in  other  cases;  and  no 
recovery  shall  be  had  in  the  action  unless  proof  be  made 
of  the  presentations  required.     En.  March  11,  1872. 

Cal.    Rep.    Cit.     52,    227;    79,    10;    79,    11;    89,   4;    95,   437; 

95,  438;    99,   503;    99,   507;    99,   508;    9S,   509;    106,   204; 

107,  52;    107,  53;    123,  22;   123,  469;   129,  479;   133,  95; 

133,  96;   133,  98. 

Code   Civil   Proc— 36. 


({  1503-1506  CLAIMS    AaAlNST    KSTATBJ.  »6« 

Prob.  Act.  sec.  138.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Clt.     27,  355;    42,  132;   42,  134;    50,  42. 
Effect  of  judgment  against  executor:   Post,  sec.  1504. 

§  1503,  Allowance  of  claim  In  part.  Whenever  any 
claim  is  prpsented  to  an  executor  or  administrator,  or  to  a 
judge,  and  he  is  willing  to  allow  the  same  in  part,  he  must 
state  in  his  indorsement  the  amount  he  is  willing  to  allow. 
If  the  creditor  refuse  to  accept  the  amount  allowed  in 
satisfaction  of  his  claim,  he  shall  recover  no  costs  in  any 
action  therefor  brought  against  the  executor  or  adminis- 
trator, unless  he  recover  a  greater  amount  than  that  of- 
fered to  be  allowed.    En.  March  11,  1872.    Am'd.  1880,  91. 

Cal.  Rep.  Cit.     85,  142;  112,  88. 

Prob.  Act,  sec.  139.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Clt.    9,  636;  21,  31. 

§  1504.  Effect  of  Judgment  against  executor.  A  judg- 
ment rendered  against  an  executor  or  administrator,  upon 
any  claim  for  money  against  the  estate  of  his  testator  or 
Intestate,  only  establishes  the  claim  in  the  same  manner 
as  if  it  had  been  allowed  by  the  executor  or  administrator 
and  the  judge;  and  the  judgment  must  be  that  the  executor 
or  administrator  pay,  in  due  course  of  administration,  the 
amount  ascertained  to  be  due.  A  certified  transcript  of 
the  original  docket  of  the  judgment  must  be  filed  among 
the  papers  of  the  estate  in  court.  No  execution  must  is- 
sue upon  such  judgment,  nor  shall  It  create  any  lien  upon 
the  property  of  the  estate,  or  give  to  the  judgment  creditor 
any  priority  of  payment.  En.  March  11,  1872.  Am'd.  1880, 
91. 

Cal.  Rep.  Clt.     52,  227;   70,  185;   74,  567;    88,  647;   93,  17; 

121,  638;    124,  222;    132,  511;    133,  301;    138,  304;    138, 

305;   138,  306;   141,  16. 
Prob.  Act,  sec.  140.     En.  April  22,  1850.     Rep.  1851,   489. 
En.   1851,   448. 

Cal.  Rep.  Cit.     6,  413;   9,  127;   9,  136;   21,  30;   29,  363;    29, 

366;  29,  368;  29,  373;  32,  397;  84,  226;  38,  87;  38,  878; 

46,  315;    46,  317. 

§  1505.  Execution  not  to  Issue  after  death.  If  one  la 
levied  tiie  property  may  be  sold.    Vv'^hen  any  judgment  has 


563  CLAIMS    AGAINST    ESTATE.  {g  1508,  1507 

been  rendered  for  or  against  the  testator.  Intestate  In  hia 
lifetime,  no  execution  shall  issue  thereon  after  his  death, 
except  as  provided  in  section  six  hundred  and  eighty-six. 
A  judgment  against  the  decedent  for  the  recovery  of  money 
must  be  presented  to  the  executor  or  administrator  lllte 
any  other  claim.  If  execution  Is  actually  levied  upon  any 
property  of  the  decedent  before  his  death,  the  same  may  be 
sold  for  the  satisfaction  thereof;  and  the  officer  making  the 
sale  must  account  to  the  executor  or  administrator  for  any 
surplus  in  his  hands.  A  Judgment  creditor  having  a  judg- 
ment which  was  rendered  against  the  testator  or  intestate 
In  his  lifetime,  may  redeem  any  real  estate  of  the  decedent 
from  any  sale  under  foreclosure  or  execution.  In  like  man- 
ner and  with  like  effect  as  if  the  judgment  debtor  were 
still  living.     En.  March  11,  1872.     Am'd.  187S-4,  413. 

Cal.  Rep.  Cit.     65,  519;  86,  121;  86,  122;  99,  582;  124,  230; 
138,  259;  138,  304;  138,  305;  188,  306. 

Prob.  Act,  sec.  141.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  638. 

Cal.  Rep.  Cit.  9,  127;  19,  100;  22,  99;  29,  373;  37,  143; 
88,  378;  55,  579. 

§  1506.  What  Judgment  is  not  a  lien  on  real  property  of 
estate.  A  judgment  rendered  against  a  decedent,  dying 
after  verdict  or  decision  on  an  issue  of  fact,  but  before 
Judgment  is  rendered  thereon,  is  not  a  lien  on  the  real 
property  of  the  decedent,  but  Is  payable  In  due  course  of 
administration.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     124,  230;  124,  232. 

§  1507.  May  refer  doubtful  claims.  Effect  of  referee's 
allowance  or  rejection.  If  the  executor  or  administrator 
doubts  the  correctness  of  any  claim  presented  to  him,  he 
may  enter  Into  an  agreement,  in  writing,  with  the  claimant, 
to  refer  the  matter  in  controversy  to  some  disinterested 
person,  to  be  approved  by  the  superior  court,  or  a  judge 
thereof.  Upon  filing  the  agreement  and  approval  of  such 
court  or  judge,  in  the  office  of  the  clerk  of  the  court  for 
the  county  In  which  the  letters  testamentary  or  of  admin- 
istration were  granted,  the  clerk  must  enter  a  minute  of 
the  order  referring  the  matter  in  controversy  to  the  person 
so  selected,  or.  If  the  parties  consent,  a  reference  may  be 
had  in  the  court;  and  the  report  of  the  referee,  if  con- 
firmed, establishes  or  rejects  the  claim  the  same  as  If  it 


§§  150S-1510  CLAIMS    AGAINST    ESTATE.  664 

had  been  allowed  or  rejected  by  the  executor  or  adminis- 
trator and  judge.     En.  March  11,  1872.    Am'd.  1880,  91. 

Cal.  Rep.  Clt.     69,  80;   104,  245. 

Prob.  Act,  sec.  142.     En.   April  22,  1850.    Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  638. 

§  1508.     Trial   by   referee,   how  confirmed   and   Its   erfect. 

The  referee  must  hear  and  determine  the  matter,  and  make 
his  report  thereon  to  the  court  in  which  his  appointment 
Is  entered.  The  same  proceedings  shall  be  had  in  all  re- 
spects, and  the  referee  shall  have  the  same  powers,  be 
entitled  to  the  sa::ne  compensation,  and  subject  to  the  same 
control,  as  in  ether  cafles  of  reference.  The  court  may 
remove  the  referee,  s.ppoint  another  In  his  place,  set  aside 
or  confirm  his  report,  and  adjudge  costs,  as  In  actions 
against  executors  or  administrators,  and  the  judgment  of 
the  court  thereon  shall  be  as  valid,  and  effectual.  In  all 
respects,  as  If  the  same  had  been  rendered  In  a  suit  com- 
menced by  ordinary  process.     En.  March  11,  1872. 

Cal.  Rep.  Clt.    104,  246;   104,  247. 

Prob.   Act,  sec.  143.     En.  April  22,  1850.     Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  639. 

Reference:  Ante,  sees.  638-645. 

§  1509.     Liability  of  executor,   etc.,  for  costs.     When  a 

judgment  is  recoA-ered,  with  costs,  against  any  executor  or 
administrator,  he  shall  be  individually  liable  for  such  costs, 
but  they  must  be  allowed  him  in  his  administration  ac- 
counts, unless  it  appears  that  the  suit  or  proceeding  In 
which  the  costs  were  taxed  was  prosecuted  or  defended 
without  Just  cause.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     93,  572;  99,  479;  108,  258;  126,  371;  128,  337; 
128,  338. 

Prob.  Act,  sec.  144.    En.  April  22,  1850.    Rep.  1851,  489. 
En.  1851,  448.  '* 

Cal.  Rep.  Clt.    46,  233. 

§  1510.     Claims  of  executor,  etc.,  against  estate.     If  the 

executor  or  administrator  is  a  creditor  of  the  decedent,  his 
claim  duly  authenticated  by  affidavit  must  be  presented 
for  allowance  or  rejection  to  a  judge  of  the  superior  court, 
and  its  allowance  by  the  judge  Is  sufficient  evidence  of  Its 


5«5  CLJi.IMS    AGAINST    ESTATE.  }§   1511.  1512 

correctness,  and  must  be  paid  as  other  claims  in  due 
course  of  administration.  If,  however,  the  ju-dge  reject  the 
claim,  action  thereon  may  be  had  against  the  estate  by  the 
claimant,  and  summons  must  be  served  upon  the  judge, 
who  may  appoint  an  attorney,  at  the  expense  of  the  estate, 
to  defend  the  action.  If  the  claimant  recover  no  judgment, 
he  must  pay  all  costs,  including  defendant's  reasonable 
attorney's  fees,  to  be  fixed  by  the  court.  En.  March  11, 
1872.     Am'd.  18S0,  92. 

Cal.  Rep.  Cit.  52,  577;  67.  244;  78,  62G;  78,  627;  92,  436; 
121,  637;  121,  638;  125,  361;  147,  21;  147,  460. 

Prob.  Ax;t,  sec.  145.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1872,  52. 

Cal.  Rep.  Cit.  21,  31. 

Claim:  Ante,  sec.  1493. 

§  1511.  Executor  neglecting  to  give  notice  to  creditors, 
to  be  removed.  If  an  executor  or  administrator  neglects, 
for  two  months  after  his  appointment,  to  give  notice  to 
creditors,  as  prescribed  by  this  chapter,  the  court  must 
revoke  his  letters,  and  appoint  some  other  person  in  his 
stead,  equally  or  the  next  in  order  entitled  to  the  appoint- 
ment.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     127,  429. 

Prob.  Act,  sec.  146.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1512.  Executor  to  return  statement  of  claims.  At  the 
same  time  at  which  he  is  required  to  return  his  inventory, 
the  executor  or  administrator  must  also  return  a  statement 
of  all  claims  against  the  estate  which  have  been  presented 
to  him,  if  so  required  by  the  court,  or  a  judge  thereof,  and 
from  time  to  time  thereafter  he  must  present  a  statement 
of  claims  subsequently  presented  to  him,  if  so  required  by 
the  court,  or  a  judge  thereof.  In  all  such  statements  he 
must  designate  the  names  of  the  creditors,  the  nature  of 
each  claim,  when  it  became  due,  or  will  become  due,  and 
whether  it  was  allowed  or  rejected  by  him.  En.  March  11, 
1872.     Am'd.  1880,  92. 

Cal.  Rep.  Cit.     67,  640. 

Prob.  Act,  sec.  147.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit     9,  636;  21,  32. 


|§  1313.  1514  CLAIMS    AGAINST    ESTATE.  GC6 

§  1513.  Payment  of  interest-bearing  claims.  If  there  be 
any  debt  of  the  decedent  bearing  interest,  whether  pre- 
sented or  not,  the  executor  or  administrator  may,  by  order 
of  the  court,  pay  the  amount  then  accumulated  and  unparl, 
or  any  part  thereof,  at  any  time  when  there  are  sufficient 
funds  properly  applicable  thereto,  whether  said  claim  be 
then  due  or  not;  and  interest  shall  thereupon  cPAse  to 
accrue  upon  the  amount  so  pai-d.  This  section  does  not 
apply  to  existing  debts,  unless  the  creditor  consent  to 
accept  the  amount.    En.  Stats.  1873-4,  3C6. 

Cal.  Rep.  Cit.     106,  155;  120,  700;   143,  483. 

Payment  of  debts  of  estate,  generally:  Post,  sees.  1643 
et  seq. 

§  1514.     Proceedings   where   claimant   cannot   be   found. 

Whenever  any  claim  has  been  presented  to  an  executor  or 
administrator,  and  to  the  court,  and  has  been  allowed  and 
approved,  but  the  sajne  shall  not  have  been  paid,  and  the 
estate  is  in  all  other  respects  ready  to  be  closed,  if  it  be 
made  to  appear  to  the  satisfaction  of  the  court  or  judge,  by 
affidavit,  or  by  testimony  taken  in  open  court,  that  the 
same  cannot  be,  and  has  not  been,  paid  because  the  claim- 
ant cannot  be  found,  the  court  or  jud'ge  shall  make  an 
order  fixing  the  amount  of  said  claim,  with  interest,  if  any, 
and  directing  the  executor  or  administrator  to  deposit  the 
amount  with  the  county  treasurer  of  the  county  in  which 
the  estate  is  being  probated,  who  shall  give  a  receipt  for 
the  same,  and  who  shall  be  liable  upon  his  official  bond 
therefor.  Such  executor  or  administrator  shall  at  once 
make  the  deposit  in  accordance  with  such  order  of  court 
and  shall  forthwith  proceed  to  close  up  and  settle  such 
estate.  Upon  the  final  settlement  of  his  accounts,  the  re- 
ceipt of  such  treasurer  shall  be  received  as  a  proper 
voucher  for  the  payment  of  such  claim,  and  shall  have  the 
same  force  and  effect  as  if  executed  by  such  claimant. 
When  the  amount  so  deposited  is  not  claimed  within  five 
years  the  court  or  judge,  upon  su-ch  showiug  by  the  affidavit 
of  the  county  treasurer,  must  direct  the  same  to  be  de- 
posited in  the  state  treasury  for  the  benefit  of  such  claim- 
ant, or  his  legal  representative,  to  be  paid  to  him, 
whenever,  within  five  years  after  such  deposit,  proof  to  the 
satisfaction  of  the  state  controller  and  state  treasurer  is 
produced  that  he  is  entitled  thereto.  When  so  claimed,  the 
evidence  and  the  joint  order  of  the  controller  and  treasurer 
must  be  filed   by  the  treasurer  as  his    voucher,  and    the 


567  SALES   AND   CONVEYANCES.  |  1518 

amount  of  the  claim  paM  to  the  claimant,  or  his  le^al 
representative,  on  filing  the  proper  receipt.  If  no  one 
claims  the  amount,  as  herein  provided,  the  claim  devolves 
and  escheats  to  people  of  the  state  of  California  and  shaJl 
he  placed  by  the  state  treasurer  to  the  credit  of  the  school 
fund.  This  section  shall  be  applicable  to  any  and  all 
estates  now  pendin-g  in  which  a  decree  of  final  discharge 
has  not  been  granted.  En.  Stats.  1903,  203. 
Cal.  Rep.  Cit     65,  518. 

CHAPTER  Vn. 

OF  SALES  AND   CONVEYANCES   OF  PROPERTY   OF  DECBH5ENT3. 

Article    I.    Sales  In  General,    §§  1516-1519. 

II.     Sales    of    Personal    i'roperty,    §§    1522-152S. 

III.     Summary  Sales  of  Mines  and  Mining  Interests,    5§    1529-1533. 
rv.     Sales    of    Real    E.state,    Interesta    Therein,    and    Confirmation 

Thereof,    §§    1536-1576. 
Y.    Mortgages  and  Leases  of  Real  Estate,    §§   1577-1579. 

ARTICLE    L 

BALES   IN   GENEBAl.. 

5  1518.    Estate  chargeable  with  debts.    No  priority. 
§  1517.     No    sales   valid    except    by   order   of   superior   court. 
§  1518.    Petitions   for  orders  of  sale. 

§  1519.    But  one  petition,   order,   and  sale  must  be  hail  when  it  la  pos- 
sible to  do  so. 

§  1516.     Estate  chargeable  wtth  debts.     No  priority.    All 

the  property  of  a  decedent  shall  be  chargeable  with  the 
payment  of  the  debts  of  the  deceased,  the  expenses  of  ad- 
ministration, and  the  allowance  to  the  family,  except  as 
otherwise  provided  in  this  code,  and  in  the  Civil  Code. 
And  the  said  property,  personal  and  reaJ,  may  be  sold  as 
the  court  may  direct.  In  the  manner  prescribed  in  this 
chapter.  There  shall  be  no  priority  as  between  personal 
and  real  property  for  the  above  purposes.  En.  March  11, 
1872.     Am'd.  1873-4,  367. 

Cal.  Rep.  Cit.  57,  459;  67,  639;  120,  92;  131,  119;  142,  456. 

Prob.  Act,  sec.  115.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  20,  313;  31,  616. 

All  property  chargeable  for  debts,  etc.:  Civ,  Code,  sec. 
1358;  order  of  appropriation:  Civ.  Code,  sec  1359;  and 
see  sees.  1560-1564,  post. 


{§  1517-1513  SAL.E3    AND    CONVEYANCES.  SW 

Personal  and  real  property,  appro:;  iated  without  dis- 
tinction: Post,  sec.  15G3. 

Sold  as  the  court  may  direct:   Post,  see.  1517. 

A  contract  for  th3  purchase  of  real  estate  may  be  sold: 
Post,  sees.  15G5  et  seQ. 

Sale,  executor,  etc.,  cannot  buy  at,  or  be  interested  in: 
Post,  sec.  15YS. 

S  1517.     No  sales  valid  except  by  order  of  superior  court. 

No  sale  of  any  property  of  an  estate  of  a  decedent  is 
valid  unless  made  under  order  of  the  superior  court,  except 
as  otherwise  provided  in  this  chapter.  All  sales  must  be 
under  oath  reported  to  and  confirmed  by  the  court  before 
the  title  to  the  property  soM  passes.  En.  MarcL  11,  1872. 
Am'd.   1880,  92. 

Cal.  Rep.  Cit.  49,  495;  50,  99;  63,  18;  104,  412;  114,  660; 
115,  33;   115,  205;   131,  164;   144,  126. 

Prob.  Act,  sec.  148.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  639. 

Cal.  Rep.  Cit     9,  127;  18,  303;  21,  29;  21,  44. 

Valid  sales,  where  property  is  mortgaged:  Post,  sec. 
1569. 

§  1518.  Petitions  for  orders  of  sale.  All  petitions  for 
orders  of  sale  must  be  in  writing,  setting  forth  the  facts 
showing  the  sale  to  be  necessary,  and,  upon  the  hearing, 
any  person  interested  in  the  estate  may  file  his  written 
objections,  which  must  be  heard  and  determined.  A 
failure  to  set  forth  the  facts  showing  the  sale  to  be  neces- 
sary will  not  invalidate  the  subsequent  proceedings,  if  the 
defect  be  supplied  by  the  proofs  at  the  hearing,  and  the 
general  facts  showing  the  necessity  be  stated  in  the  order 
directing  the  sale.     En.  March  11,  1872.     Am'd.  1873-4,  367. 

Prob.   Act,  sec.  149,     En.  April  22,  1850.     Rep,  1851,  489. 
En.  1851,  448. 
Cal.  Rep.  Cit.    9,  636. 

§  1519.  But  one  petition,  order,  and  sale  must  be  had 
when  it  is  possible  to  do  so.  When  it  appears  to  the  court 
that  the  estate  is  insolvent,  or  that  it  will  require  a  sale 
of  all  the  property  of  the  estate  of  every  character,  to  pay 
the  family  allowance,  expenses  of  administration,  and 
debts,  there  need  be  but  one  petition  filed,  but  one  order 
of  saJe  made,  and  but  one  sale  had,  except  In  the  case  of 


sea  BAT.W3    AJTD    CONVEYANCES.  §  152J 

perishable  property,  which  may  be  sold  as  provided  in 
section  fifteen  hundred  and  twenty-two.  The  court,  when 
a  petition  for  the  sale  of  any  property  for  any  of  the  pur- 
poses herein  named  is  presented,  must  inquire  fully  into 
the  probable  amount  required  to  make  all  such  payments, 
and  if  there  be  no  more  estate  than  suffi'Cient  to  pay  the 
same,  may  require  but  one  proceeding  for  the  sale  of  the 
entire  estate.  In  such  case  the  petition  must  set  forth  sub- 
stantially the  facts  required  by  section  fifteen  hundred  and 
thirty-seven.  En.  March  11,  1872.  Am'd.  1873-4,  367;  1880, 
92. 

Cal.  Rep.  Cit.     57,  459. 

Orders,  generally,  in  probate  matters:  Post,  sec.  1704. 
One  petition  for  realty,  sale  of  personalty  on:  Post,  sees. 
1536,  1639. 

ARTICLE  IL 

SALES  OF  PERSONAL,  PROPERTY. 

§  1522.  Perishable   and   depreciating  property   to  be   sold. 

§  ir.L'3.  Order  to   sell  personal  property. 

§  1524.  Partnership    Interests   and   choses   In   action,    how   sold. 

§  1525.  Order  of  sale,  what  to  direct  and  what  to  be  first  stdd. 

§  1526.  Sale  of  personal  property. 

§  1627.  Sale  of  personal   property. 

9  1522.     Perishable  and  depreciating  property  to  be  sold. 

At  any  time  after  receiving  letters,  the  executor,  adminis- 
trator, or  special  administrator  may  apply  to  the  court  or 
Judge  and  obtain  an  order  to  sell  perishable  and  other 
personal  property  likely  to  depreciate  in  value,  or  which 
will  incur  loss  or  expense  by  being  kept,  and  so  much 
other  personal  property  as  may  be  necessary  to  pay  the 
allowance  made  to  the  family  of  the  decedent  The  order 
for  the  sale  may  be  made  without  notice;  but  the  executor, 
administrator,  or  special  administrator  is  responsible  for 
the  property,  unless,  after  making  a  sworn  return  and  on  a 
proper  showing,  the  court  shall  approve  the  sale.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     57,  459;  106,  433;  129,  89. 

Prob.  Act,  sec.  150.  En.  April  22,  1850.  Rep.  1851,  48d» 
En.  1851,  448.  Am'd.  1860,  175;  1861,  639. 

Cal.  Rep.  Cit.  9,  636;  21,  32. 

Petition:   Ante,  sec.  1518. 

Order  for  the  sale:  Post,  sec.  1525. 


|§  1523-1525  SALES    AND    CON VICYANCES.  670 

§  1523.  Order  to  sell  personal  property.  If  claims 
against  the  estate  have  been  allowed,  and  a  sale  of  property 
is  necessary  for  their  payment,  or  for  the  expenses  of  ad- 
ministration, or  for  the  payment  of  legacies,  the  execu- 
tor or  administrator  may  apply  for  an  order  to  sell  so  much 
of  the  personal  property  as  may  be  necessary  therefor. 
Upon  filing  his  petition,  notice  of  at  least  five  days  must 
be  given  of  the  hearing  of  the  application,  either  by  post- 
ing notices  or  by  advertising.  He  may  also  make  a  similar 
application  from  time  to  time,  so  long  as  any  personal 
property  remains  in  his  hands,  and  sale  thereof  is  neces- 
sary. If  it  appear  for  the  best  interests  of  the  estate,  he 
may,  at  any  time  after  filing  the  inventory,  in  like  manner, 
and  after  giving  like  notice,  apply  for  and  obtain  an  order 
to  sell  the  whole  of  the  personal  property  belonging  to  the 
estate,  whether  necessary  to  pay  debts  or  not.  En.  March 
11,  1872.      Am'd.  1873-4,  368;  1880,  93. 

Cal.  R^.  Cit.     57,  459. 

Notice  by  advertising:  Post,  sec.  1705. 

S  1524.  Partnership  interests  and  choses  In  action,  bow 
sold.  Partnership  Interests  or  interests  belonging  to  any 
estate  by  virtue  of  any  partnership  formerly  existing,  in- 
terest in  personal  property  pledged,  and  choses  in  action, 
may  be  sold  in  the  same  manner  as  other  personal  prop- 
erty, when  it  appears  to  be  for  the  best  interest  of  the 
estate.  Before  confirming  the  sale  of  any  partnership  in- 
terest, whether  made  to  the  surviving  partner  or  to  any 
other  person,  the  court  or  judge  must  carefully  inquire  into 
the  condition  of  the  partnership  affairs,  and.  must  examine 
the  surviving  partner,  if  in  the  county  and  able  to  be  pres- 
ent in  court.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     104,  412;  114,  661;  131,  164. 

Partnership  interest:  Post,  sec  1585. 

§  1525.  Order  of  sale,  what  to  direct  and  what  to  be 
first  sold.  If  it  appear  that  a  sale  is  necessary  for  the  pay- 
ment of  debts  or  the  family  allowance,  or  for  the  best 
Interest  of  the  estate  and  the  persons  interested  in  the 
property  to  be  sold,  whether  it  is  or  is  not  necessary  to 
pay  tie  debts  or  family  allowance,  the  court  or  judge  must 
order  it  to  be  made.  In  making  orders  and  sales  for  the 
payment  of  debts  or  family  allowance,  such  articles  as  are 


571  SALES   AND    CONVEYANCES.  S§  1526.  1527 

not  necessary  for  the  support  and  subsistence  of  the  family 
of  the  decedent,  or  are  not  specially  bequeathed,  must  be 
first  sold,  anti  the  court  or  judge  must  so  direct  En.  March 
11,  1872.     Am'd.  1873-4,  368. 

Cal.  Rep.  Cit.     57,  459, 

Prob.   Act,  sec.  151.     En.  April  22,  1850.     Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1860,  175;  1861,  639. 
Cal.  Rep.  Cit.     48,  193. 

§  1526.  Sale  of  personal  property.  The  sale  of  personal 
property  must  be  made  at  public  auction  for  such  money 
or  currency  as  the  court  may  direct,  and  after  public 
notice  given  for  at  least  ten  days  by  notices  posted  in  three 
public  places  in  the  county,  or  by  publication  in  a  news- 
paper, or  both,  containing  the  time  and  place  of  sale,  and 
a  brief  description  of  the  property  to  be  sold,  unless  for 
good  reason  shown  the  court,  or  a  judge  thereof,  orders  a 
private  sale  or  a  shorter  notice.  Public  sales  of  such  prop- 
erty must  be  made  at  the  courthouse  door,  or  at  the  resi- 
dence of  the  decedent,  or  at  some  other  public  place;  but 
no  sale  shall  be  made  of  any  personal  property  which  is  not 
present  at  the  time  of  sale,  unless  the  court  otherwise 
order.     En.  March  11,  1872.     Am'd.  1873-4,  369;   1880,  93. 

Prob.  Act,  sec.  152.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1855,  299;  1861,  640. 

Prob.  Act,  sec.  153.  En.  April  22,  1850.  Rep.  1851,  489 
En.  1851,  448.     Am'd.  1861,  640. 

§  1527.     Sale    of   personal    property  of  deceased   person. 

Whenever  it  appears  to  the  court  on  any  hearing  of  an  ap- 
plication for  a  sale  of  real  property,  that  it  would  be  for 
the  interest  of  the  estate  that  personal  property  of  the  es- 
tate, or  some  part  of  such  property,  should  first  be  sold,  the 
court  may  decree  the  sale  of  sa.id  personal  property,  or  any 
part  of  it,  and  the  sale  thereof  shall  be  conducted  in  the 
same  manner  as  if  the  application  had  been  made  for  the 
sale  of  such  personal  property  in  the  first  instance.  En. 
1905,  242. 

Cal.  Rep.  Cit    104,  111. 

By  Bome  unaccountable  mistake  the  present  section  1639,  which  con- 
cerns sales  of  personal  property,  is  placed  In  the  wrong  chapter,  to 
wit:  that  entitled  "Accounting  and  Settlement  by  Executors  an-J 
Administrators."  It  Is,  therefore,  repealed,  and  a  new  section,  1527 
containing  exactly  the  same  provisions  as  the  old  section  1639,  'is  In- 
serted In  the  proper  chapter,  to  wit:  that  concerning  "Sales  of  Per- 
taaal  Prc*>erty." — Co<le   Commissioner' 8  Note, 


§§  1J29-1»31  SALJiS   AND    CONVEYANCES.  672 


ARTICLE  III. 

SUMMARY   SALES  OF   MINES   AND   MINING  INTERESTS. 

§  1529.  Mines  may   be  sold,   how. 

§  1530.  Petition  for  sale,    who  may  file  and   what  to  contain. 

§  1531.  Order  to  show  cause,    how  made  and  on  what  notice. 

§  1532.  Order  of  sale,   when  and  how  made. 

§  1533.  Further   proceedings   to   conform   to   articles   two  and    four. 

§  1529.  Mines  may  be  sold,  how.  When  it  appears  from 
the  inventory  of  the  estate  of  any  decedent  that  his  estate 
consists  in  whole  or  in  part  of  mines,  or  interests  in  mines, 
such  mines  or  interests  may  be  sold  under  the  order  of  the 
court  having  jurisdiction  of  the  estate,  as  hereinafter  pro- 
vided.    En.  March  11,  1S72.     Am'd.  1880,  93. 

Cal.  Rep.  Cit.    83,  349;     112,  178;    116,  581. 

§  1530.  Petition  for  sale,  who  may  file  and  what  to  con- 
tain. The  executor  or  administrator,  or  any  heir  at  law, 
or  creditor  of  the  estate,  or  any  partner  or  member  of  any 
mining  company,  in  which  interests  or  shares  are  held  or 
owned  by  the  estate,  may  file  in  the  court  a  petition,  in 
writing,  setting  forth  the  general  facts  of  the  estate  being 
then  in  due  course  of  administration,  and  particularly  de- 
scribing the  mine.  Interest,  or  shares  which  it  is  desired  to 
sell,  and  particularly  the  condition  and  situation  of  the 
mines  or  mining  interests,  or  of  the  mining  company  in 
which  such  interests  or  shares  are  held,  and  the  grounds 
upon  which  the  sale  is  asked  to  be  made.  En.  March  11, 
1872.     Am'd.  1880,  93. 

Cal.  Rep.  Cit.     55,  314;    83,  349;    138,  302. 

Petition  for  sale,  generally:  Ante,  sec.  1518. 

§  1531.  Order  to  show  cause,  how  made  and  on  what 
notice.  Upon  the  presentation  of  such  petition,  the  court, 
or  a  judge  thereof,  must  make  an  order  directing  all  per- 
sons interested  to  appear  before  such  court,  at  a  time  and 
place  specified,  not  less  than  four  or  more  than  ten  weeks 
from  the  time  of  making  such  order,  to  show  cause  why  an 
order  should  not  be  granted  to  the  executor  or  adminis- 
trator to  sell  such  mine,  mining  interests,  shares,  or 
stocks,  as  are  set  forth  in  the  petition  and  belonging  to 
the    estate.    A  copy  of  the  order  to  show  cause  must  be 


673  SALES   AND    CONVEYANCES.  j§  1532,  1533 

personally  served  on  all  persons  interested  in  the  estate, 
at  least  ten  days  before  the  time  appointed  for  hearing  the 
petition,  or  published  at  least  four  successive  weeks  in 
such  newspaper  as  such  court  or  judge  shall  specify.  If 
all  persons  interested  in  the  estate  signify  in  writing 
their  assent  to  such  sale,  the  notice  may  be  dispensed 
with.     En.  March  11,  1872.     Am'd.  1880,  94. 

Publication  of  notice:   Post,  sec.  1705. 

§  1532.  Order  of  sale,  when  and  how  made.  If,  upon 
hearing  the  petition,  it  appears  to  the  satisfaction  of  the 
court  that  it  is  to  the  interest  of  the  estate  that  such  min- 
ing  property  or  interests  of  the  estate  should  be  sold,  or 
that  an  immediate  sale  is  necessary  in  order  to  secure  the 
just  rights  or  interests  of  the  mining  partners,  or  tenants 
in  common,  such  court  must  make  an  order  authorizing 
the  executor  or  administrator  to  sell  such  mining  inter- 
ests, mines,  or  shares,  as  hereinafter  provided.  En. 
March  11,  1872.     Am'd.  1880,  94. 

§  1533.  Further  proceedings  to  conform  to  articles  two 
and  four.  After  the  order  of  sale  is  made,  all  further  pro- 
ceedings for  the  sale  of  such  mining  property,  and  for  the 
notice,  report,  and  confirmation  thereof,  must  be  in  con- 
formity with  the  provisions  of  article  four  of  this  chapter. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.     83,  349;    112,  178. 


$  16W  BAJvES   AND   CONVEYANCES.  (74 


ARTICLE  IV. 

THE  SALK   OF  REAL  ESTATE,    INTERESTS  THEREIN,    AND   CON- 
FIRMATION   THEREOF. 

S  1K6.  When  executor  or  administrator  may  sell  property. 

I  1637.  Verified  petition   for  sale,    what  to  contain. 

S  1538.  Order   to   persons   Interested   to   appear. 

I  1539.  Copy   to   be   served,   assent  given,   or   publication   made. 

§  IKW.  Hearing    after    proof    of    service.     Presentation    of    claims. 

§  1541.  Administrator,   executor,  and  witnesses  may  be  examined. 

§  1542.  To   sell   real  estate  or  any   part,    when. 

§  1543.  Order  of  sale,    when   to  be   made. 

§  1544.  What  the  order  of  sale  must  contain.  May  be  at  public  or  pri- 
vate sale. 

§  1MB.  Interested  persona  may  apply  for  order  of  sale.  Form  of  peti- 
tion. 

§  1546.  To  deliver  copy  ot  order  to  executor.    (Rcpeale\l.) 

§  1>47.  Notice   of  sale. 

5  1648.  Time  and  place. 

I  1549.  Private  sale  of  real  estate,  bow  made,  and  notice.  Bids,  when 
and   how  received. 

}  1550.  Ninety  per  cent  of  appraised  value  must  be  offered. 

§  1551.  Purchase  money  on  sale  on  credit,   how  secured. 

§  1552.  Return  of  proceedings  and  hearing.  Setting  aside  sale.  Re- 
sale. 

§  1553.  May  file  objections,   when  and  who. 

§  1554.  When   order  of  confirmation  is  to  be  made  and  when  not. 

§  1555.  Conveyances. 

§  1656.  Order   of   confirmation,    what   to   state. 

§  1557.  Sale   may  be  postponed. 

§  1558.  Notice  of  postponement. 

§  1559.  Sale  of  real   estate  to  pay  legacies.     (Repealed.) 

§  1560.  Where   payment   of  debts,    etc.,    provided   for   by   will. 

§  1561.  Sale  without  order. 

§  1562.  Where   provision   by   will    insufficient. 

§  1563.  Estate  subject  to  debts,   etc. 

§  1564.  Contribution   among  legatees. 

§  1565.  Contract    for  purchase   of   lands  may   be   sold,    how. 

§  1566.  Conditions  of   sale. 

§  1567.  Purchaser  to   give   bond. 

§  1568.  Executor  to  assign   contract. 

§  1569.  Sales  by  executors  or  administrators  of  lands  under  mortgage 
or  lien. 

§  1570.  The  holder  of  the  mortgage  or  lien  may  purchase  the  lands. 
His   receipt   to   the   amount   of  his  claim    a   valid   payment. 

§  1571.  Administrator   and    executor   liable    for    misconduct   in   sale. 

§  1572.  Fraudulent   sales. 

§  1573.  Limitation  of  actions  for  vacating  sale,   etc. 

§  1574.  To   what  cases   preceding  section  not   to  apply. 

§  1575.  Account  of  sale   to  be   returned. 

§  1576.  Executor,   etc.,   not  to  be  purchaser. 

§  1536.  When  executor  or  administrator  may  se!l  prop- 
erty. When  a  sale  of  property  of  the  estate  is  necessary  to 
pay  the  allowance  of  the  family,  or  the  debts  outstanding 
against  the  decedent,  or  the  debts,    expenses,    or    charges 


«75  SALES  AND   CONVEYANCES.  !  1637 

of  administration  or  legacies;  or  when  it  appears  to  the 
satisfaction  of  the  court  that  it  is  for  the  advantage,  bene- 
fit, and  best  interests  of  the  estate,  and  those  interested 
therein  that  the  real  estate,  or  some  part  thereof,  be  sold, 
the  executor  or  administrator  may  sell  any  real  as  well  as 
personal  property  of  the  estate  upon  the  order  of  the 
court;  and  an  application  for  the  sale  of  real  property  may 
also  embrace  the  sale  of  personal  property.  En.  March 
11,  1872.     Am'd.  1873-4,  369;  1880,  94;  1893,  212. 

Cal.  Rep.  Cit.  57,  459;  83,  349;  87,  482;  88,  584;  88, 
588;  112,  178;  120,  92;  129,  87;  131,  670;  142,  379; 
144,  668. 

Prob.  Act,  sec.  154.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  640. 

Cal.  Rep.  Cit.  13,  576;  16,  500;  20,  124;  20,  813;  22, 
275;  36,  690;  48,  193;  50,  406;  55,  582;  189,  19. 

Sale  of  realty,  authorized:  Ante,  sec.  1516;  interest  un- 
der contracts  may  be  included:  Post,  sec.  1565;  additional 
bond  on:   Ante,  sec.  1389. 

§  1537.  Verified  petition  for  sale,  what  to  contain.  To 
obtain  such  order  for  the  sale  of  real  property,  he  must 
present  a  verified  petition  to  the  superior  court,  or  a  judge 
thereof,  setting  forth  the  amount  of  the  personal  estate 
that  has  come  to  his  hands  and  how  much  thereof,  if  any, 
remains  undisposed  of;  the  debts  outstanding  against  the 
decedent,  as  far  as  can  be  ascertained  or  estimated;  the 
amount  due  upon  thg  family  allowance  or  that  will  be  due 
after  the  same  has  been  in  force  for  one  year;  the  debts, 
expenses,  and  charges  of  administration  already  accrued, 
and  an  estimate  of  what  will  or  may  accrue  during  the  ad- 
ministration; a  general  description  of  all  the  real  property 
of  which  the  decedent  died  seised,  or  In  which  he  had  any 
interest,  or  in  which  the  estate  has  acquired  any  interest, 
and  the  condition  and  value  thereof,  and  whether  the  same 
be  community  or  separate  property;  the  names  of  the 
legatees  and  devisees,  if  any,  and  the  heirs  of  the  de- 
ceased, so  far  as  linown  to  the  petitioner;  and  If  said  or- 
der for  sale  of  real  estate  Is  petitioned  for  on  the  ground 
that  it  is  for  the  advantage,  benefit,  and  best  interests  of 
the  estate  and  those  interested  therein  that  a  sale  be  made, 
the  petition,  in  addition  to  the  foregoing  facts,  must  set 
forth  in  what  way  an  advantage  or  benefit  would  accrue 
to  the  estate  and  those  interested  therein  by  such  sale.  If 
any  of  the  matters  herein    enumerated,    cannot    be    ascer- 


§  1538  SALES    AND    CONVEYANCES.  576 

tained,  it  must  be  so  stated  In  the  petition;  but  a  failure 
to  set  forth  facts  hereinbefore  enumerated  will  not  invali- 
date the  subsequent  proceedings  if  the  defect  be  supplied 
by  the  proofs  at  the  hearing  and  the  general  facts  show- 
ing that  such  sale  is  necessary  or  that  such  sale  is  for  the 
advantage,  benefit,  and  best  interests  of  the  estate  and 
those  interested  therein  be  stated  in  the  decree.  En. 
March  11,  1872.  Aip'd.  1873-4,  370;  1880,  94;  1893,  212. 
Cal.  Rep.   Cit.     51,  565;   55,  314;    55,  315;    63,  17;    63,  18; 

63,   347;    66,   389;    78,   599;    78,   600;    82,   176;    82,   549; 

83,  846;    83,  349;    83,  351;     83,  355;    83,   356;    85,   152; 

96,  667;  108,  339;  112,  178;  112,  180;  112,  268;  120,  424; 

120,  425;    120,  611;    125,  257;    125,  397;    127,  458;    131. 

119;   131,  670;   137,  185;    137,  186;    137,  187;    137,  188; 

137,  189;    141,  641;    141,  642;    142,  379. 
Prob.  Act,  sec.  155.     En.  April  22,  1850.     Rep.   1851,  489. 
En.   1851,  448.     Am'd.  1861,  640. 

Cal.  Rep.  Cit.    13,  576;   16,  500;  19,  410;  20,  124;  20,  313; 
20,  314;    33,   665;    36,   690;    36,   691;    50,   406;    54,   197; 
189,  19;   139,  20. 
Petition:  Sec.    1518.    If    executor    omits    to    apply,    any 
other  person  may:   Sec.  1545;   stating  facts  in  order:  Post, 
Bee.  1704. 
Return   of   sale:  Ante,   sec.   1517. 
Summary  sale  of  mine:  Ante,   sees.   1529  et  seq. 

§  1538.  Order  to  persons  interested  to  appear.  If  it  ap- 
pears to  the  court  or  judge,  from  such  petition,  that  it  is 
necessary,  or  that  it  would  be  for  the  advantage,  benefit, 
and  best  interests  of  the  estate  and  those  interested  there- 
in, to  sell  the  whole  or  some  portion  of  the  real  estate  for 
the  purposes  and  reasons  mentioned  in  the  preceding  sec- 
tion or  any  of  them,  such  petition  must  be  filed,  and  an 
order  thereupon  made  directing  all  persons  interested  in 
the  estate  to  appear  before  the  court,  at  a  time  and  place 
specified,  not  less  than  four  nor  more  than  ten  weeks  from 
the  time  of  making  such  order,  to  show  cause  why  an  order 
should  not  be  granted  to  the  executor  or  administrator  for 
the  sale  of  such  estate.  En.  March  11,  1872.  Am'd.  1893, 
213. 

Cal.  Rep.  Cit.     122,  41;    122,   49;    125,  257;   125,   897;    139, 
20;    139,  21. 

Prob.  Act,  sec.  156.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1801,  641. 

Cal.  Rep.  Cit.  13,  576;  16,  500;  16,  502;  16.  503;  20,  124; 
20,  313;  36,  690;  139,  20. 


677  SALE3   AND    CONVEYANCES.  §§  1533,  1540 

§  1539.  Copy  to  be  served,  assent  given,  or  publication 
made.  A  copy  of  the  order  to  show  cause  must  be  per- 
sonally served  on  all  persons  interested  in  the  estate,  any 
general  guardian  of  a  minor  so  interested,  and  any  legatee, 
or  devisee,  or  heir  of  the  decedent,  provided  they  are  resi- 
dents of  the  county,  at  least  ten  days  before  the  time 
appointed  for  hearing  the  petition,  or  be  published  four 
successive  weeks  in  such  newspaper  in  the  county  as  the 
court  or  judge  shall  direct.  If  all  persons  interested  in  th^ 
estate  join  in  the  petition  for  the  sale,  or  signify  in  writing 
their  assent  thereto,  the  notice  may  be  dispensed  v/ith, 
and  the  hearing  may  be  had  at  any  time.  En.  March  11, 
1872.     Am'd.  1873-4,   370. 

Cal.   Rep.   Cit.     84,   446;    100,   402;    122,   41;    122,   49;    1^5, 
257. 

Prob.  Act,  sec.  157.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,    448.     Am'd.    1861,    641. 

Cal.  Rep.  Cit.     20,   124;    33,  54;    139,  21. 

Prob.  Act,  sec.  159.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  641. 

Cal.  Rep.  Cit.     16,  503;  33,  52;  43,  547;  54,  197;  97,  366. 

Notice,  personal  service  or:  See  ante,  sec.  1011;  post, 
sees.   1707-1709,  1710;    publicatioxi   or:   Post,   sec.    1705. 

Ouardi&n  when  infant  a  party:  Ante,  sees.  372,  373; 
post,  sees.  1722,  1769. 

§  1540.  Hearing  after  proof  of  service.  Presentation  of 
claims.  The  court,  at  the  time  and  place  appointed  in 
such  order,  or  at  such  other  time  to  which  the  hearing 
may  be  postponed,  upon  satisfactory  proof  of  personal: 
service  or  publication  of  a  copy  of  the  order,  by  affidavit  or 
otherwise,  if  the  consent  in  writing  to  such  sale  of  all 
parties  interested  is  not  filed,  must  proceed  to  hear  the 
petition,  and  hear  and  examine  the  allegations  and 
proofs  of  the  petitioners,  and  of  all  persons  Interested  in 
the  estate  who  may  oppose  the  application.  All  claims 
against  the  decedent  not  before  pretexted,  if  the  period  ol 
presentation  has  not  elapsed,  may  be  presented  and  passed 
upon  at  the  hearing.  En.  March  U,  1872.  Am'd.  1880,  95. 
Cal.  Rep.  Cit.     62,  415;    84,  446. 

Prob.  Act,  sec.  158.     En.  April  22,  1850.     Rep.  1851,  483. 
En.  1851,  448.     Am'd.  1861,  641. 
Cal.   Rep.   Cit.    20,   lU. 

Code  Civil  Proc.— 37. 


§§  1541-1543  SALES  ANTD   CONVEYANCES.  678 

§  1541.  Administrator,  executor,  and  witnesses  may  be 
examined.  The  executor,  administrator,  and  witnesses  may 
be  examined  on  oath  by  either  party,  and  process  to  compel 
them  to  attend  and  testify  may  be  issued  by  the  court  or 
judge,  in  the  same  manner  and  with  like  effect  as  in  other 
cases.     En.    March   11,   1872.     Am'd.    1880,    95. 

■Prob.  Act,  sec.  160.     En.  April  22,  1850.     Rep.  1851,  489. 
En.   1851,    448. 
Procuring  attendance,  etc.:  Post,   sees.   1985   et  seq. 

§  1542.  To  sell  real  estate  or  any  part,  when.  If  it  ap- 
pears to  the  satisfaction  of  the  court,  or  a  judge  thereof, 
that  it  is  necessary,  or  that  it  is  for  the  advantage,  benefit, 
and  best  interests  of  the  estate  and  those  interested  there- 
in, to  sell  a  part  of  the  real  estate,  and  that  by  a  sale 
thereof  the  residue  of  the  estate,  real  and  personal,  or 
some  specific  part  thereof,  would  be  greatly  injured  or 
diminished  in  value,  or  subjected  to  expense,  or  rendered 
unprofitable,  or  that  after  any  such  sale  the  residue  would 
be  so  small  in  quantity  or  value,  or  would  be  of  such  a 
character  with  reference  to  its  future  disposition  among 
their  heirs  or  devisees,  as  clearly  to  render  it  for  the  best 
interests  of  all  concerned  that  the  same  should  be  sold,  the 
court  may  authorize  the  sale  of  the  whole  estate  or  any 
part  thereof,  as  in  the  judgment  of  the  court  is  necessary, 
or  for  the  advantage,  benefit,  and  best  interests  of  the 
estate  and  those  interested  therein.  En.  March  11,  1872, 
Am'd.  1893,  213. 

Cal.  Rep.  Cit.     57,  459;    125,  397;    138,  201;    142,  379;    142, 

380. 

Prob.  Act,  sec.  161.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.   1861,  642;    1866,  766. 

§  1543.  Order  of  sale,  when  to  be  made.  If  it  appears 
to  the  'tisfaction  of  the  court,  after  a  full  hearing  upon  the 
petitioh  and  an  examination  of  the  proofs  and  allegations 
of  the  parties  interested,  that  a  sale  of  the  whole  or  some 
portion  of  the  real  estate  is  necessary  for  any  of  the  causes 
mentioned  in  this  article,  or  that  a  sale  of  the  whole  or 
some  portion  of  the  real  estate  is  for  the  advantage,  benefit, 
and  best  interests  of  the  estate  and  those  interested  there- 
in, or  if  such  sale  be  assented  to  by  all  the  persons  inter- 
ested, an  order  must  be  made  to  sell  the  whole,  or  so 
much  and  such  parts  of  the  real  estate  described   In  the 


579  SALES   AND    CONVEYANCES.  §  1544 

petition  as  the  court  shall  judge  necessary,  or  for  tho 
advantage,  benefit,  and  best  interests  of  the  estate  and 
those  interested  therein.  En.  March  11,  1872.  Am'd.  1893, 
213. 

Cal.  Rep.  Cit.  57,  423;  84,  446;  125,  397;  132,  48;  142,  379; 
144,   127. 

Prob.  Act,  sec.  162.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,   448.     Am'd.   1861,   642. 

Cal.  Rep.   Cit.     20,  124;    36,   690. 

Order,   need  not  recite  facts:   Post,   sec.   1704. 

Personal  estate:  See,  as  to  ordering  a  sale  of  personalty 
on  application  for  sale  of  realty:  Post,   sec.   1639, 

§  1544.  What  the  order  of  sale  must  contain.  May  be  at 
public  or  private  sale.  The  order  of  sale  must  describe  the 
lands  to  be  sold  and  the  terms  of  sale,  which  may  be  for 
cash,  or  on  credit  not  exceeding  one  year,  payable  in 
gross  or  in  installments,  and  in  such  kind  of  money,  with 
interest,  as  the  court  may  direct.  The  land  may  be  sold  in 
one  parcel  or  in  subdivisions,  as  the  executor  or  adminis- 
trator shall  judge  most  beneficial  to  the  estate,  unless  the 
court  otherwise  specially  directs.  If  it  appears  that  any 
part  of  such  real  estate  has  been  devised,  and  not  charged 
in  such  devise  with  the  payment  of  debts  or  legacies,  the 
court  must  order  the  remainder  to  be  sold  before  that  so 
devised.  Every  such  sale  must  be  ordered  to  be  made  at 
public  auction,  unless,  in  the  opinion  of  the  court,  it  would 
benefit  the  estate  to  sell  the  whole  or  some  part  of  such 
real  estate  at  private  sale;  the  court  may,  if  the  same  's 
asked  for  in  the  petition,  order  or  direct  such  real  estate, 
or  any  part  thereof,  to  be  sold  at  either  public  or  private 
sale,  as  the  executor  or  administrator  shall  judge  to  be 
most  beneficial  for  the  estate.  If  the  executor  or  adminis- 
trator neglects  or  refuses  to  make  a  sale  under  the  order, 
and  as  directed  therein,  he  may  be  compelled  to  sell,  by 
order  of  the  court,  made  on  motion,  after  due  notice,  by 
any  party  interested.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     56,  209;  57,  459;  66,  132;  75,  260;  120,  425; 

125,   397;    127,  277. 
Prob.  Act,  sec.  163.     En.  April  22,  1850.     Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  642. 

Cal.  Rep.   Cit.     20,  124;    31,  606;    31,  616.31,  618. 
Contents  of  order:  Post,  sec.  1704. 


§§  1545-1548  SALEiJ    AND    CONVEYANCES.  580 

§  1545.  Interested  persons  may  apply  for  order  of  sale. 
Form  of  petition.  If  the  executor  or  administrator  neglects 
or  refuses  to  apply  for  an  order  of  sale  when  it  is  neces- 
sary, or  when  it  is  for  the  advantage,  benefit  and  best  in- 
terests of  the  estate  and  those  interested  therein  that  the 
real  estate  or  some  portion  thereof  be  sold,  any  person  in- 
terested may  make  application  therefor  in  the  same  man- 
ner as  the  executor  or  administrator,  and  notice  thereof 
must  be  given  to  the  executor  or  administrator  before  the 
hearing.  The  petition  of  such  applicant  must  contain  as 
many  of  the  matters  set  forth  in  section  one  thousand  five 
hundred  and  thirty-seven  as  he  can  ascertain,  and  the  de- 
cree of  sale  must  fix  the  period  of  time  within  which  the 
executor  or  administrator  must  make  the  sale.  En.-  March 
11,  1872.     Am'd.   1893,   214. 

Cal.  Rep.  Cit.     87,  482. 

Prob.  Act,  sec.  164.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  642. 

Cal.  Rep.  Cit.  55,  582. 

§  1546.  To  deliver  copy  of  order  to  executor.  En.  March 
11,  1872.     Rep.   1873-4,   371. 

Prob.  Act,  sec.  165.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448.     Am'd.  1861,  643. 

§  1547.  Notice  of  sale.  When  a  sale  is  ordered,  and  is 
to  be  made  at  public  auction,  notice  of  the  time  anj  place 
of  sale  must  be  posted  in  three  of  the  most  public  places 
in  the  county  in  which  the  land  is  situated,  and  published 
in  a  newspaper,  if  there  be  one  printed  in  the  same 
county,  but  if  none,  then  in  such  paper  as  the  court  may 
direct,  for  three  weeks  successively  next  before  the  sale. 
The  lands  and  tenements  to  be  sold  must  be  described 
with  common  certainty  in  the  notice.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     73,  558;     84,  446. 

Prob.  Act,  sec.  166.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1866,  766. 

§  1548.  Time  and  place.  Sales  at  public  auction  must 
be  made  in  the  county  where  the  land  is  situated;  but 
when  the  land  is  situated  in  two  or  more  counties  it  may 
be  sold  in  either.  The  sale  must  be  made  between  the 
hours   of  nine  o'clock   in  the  morning  and  the  setting  of 


5S1  SALES    AND    CONVEYANCES.  §§  15«,  1550 

the  sun  on  the  same  day,  and  must  be  made  on  the  day 
named  in  the  notice  of  sale,  unless  the  same  is  postponed. 
En.  March  11,  1872. 

Prob.  Act,  sec.  167.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  643;    1864,  370;    1866,  766. 

Postponement  of  sale:  Post,  sees.  1557,  1558. 

§  1549.  Private  sale  of  real  estate,  how  made,  and 
notice.  Bids,  when  and  hew  received.  When  a  sale  of  real 
estate  is  ordered  to  be  made  at  private  sale,  notice  of  the 
same  must  be  posted  up  in  three  of  the  most  public  places 
in  the  county  in  which  the  land  is  situated,  and  published 
in  a  newspaper,  if  there  be  one  printed  in  the  same  county, 
if  none,  then  in  such  paper  as  the  court  or  a  judge  thereof 
may  direct,  for  two  weeks  successively  next  before  the  day 
on  or  after  which  the  sale  is  to  be  made,  in  which  the 
lands  and  tenements  to  be  sold  must  be  described  with 
common  certainty.  The  notice  must  state  a  day  on  or 
after  which  the  sale  will  be  made,  and  a  place  where  of- 
fers or  bids  will  be  received.  The  day  last  referred  to 
must  be  at  least  fifteen  days  from  the  first  publication  of 
notice;  and  the  sale  must  not  be  made  before  that  day, 
but  must  be  made  within  six  months  thereafter.  The  bids 
or  offers  must  be  in  writing,  and  may  be  left  at  the  place 
designated  in  the  notice,  or  delivered  to  the  executor  or 
administrator  personally,  or  may  be  filed  in  the  office  of 
the  clerk  of  the  court  to  which  the  return  of  sale  must  be 
made,  at  any  time  after  the  first  publication  of  the  notice 
and  before  the  making  of  the  sale.  If  it  be  shown  that  it 
will  be  for  the  best  Interest  of  the  estate,  the  court  or 
judge  may,  by  an  order,  shorten  the  time  of  notice,  which 
shall  not,  however,  be  less  than  one  week,  and  may  pro- 
vide that  the  sale  may  be  made  on  or  after  a  day  less  than 
fifteen,  but  not  less  than  eight  days  from  the  first  publica- 
tion of  the  notice,  in  which  case  the  notice  of  sale,  and 
the  sale,  may  be  made  to  correspond  with  such  order. 
En.  March  11,  1872.     Am'd.  1880,  95. 

Cal.  Rep.  Cit.     75,   260;    84,   446;    112,   666;    121,  524;    121, 
528. 

§  1550.  Ninety  per  cent  of  appraised  value  must  be 
offered.  No  sale  of  real  estate  at  private  sale  shall  be  con- 
firmed by  the  court,  unless  the  sum  offered  is  at  least 
ninety  per  cent,  of  the  appraised  value  thereof,  nor  unless 


§§  1551,  1552  SALES    AND    CONVEYANCES.  682 

such  real  estate  has  been  appraised  within  one  year  of  the 
time  of  such  sale.  If  it  has  not  been  so  appraised,  or  if 
the  court  is  satisfied  that  the  appraisement  is  too  high  or 
too  lov/,  appraisers  must  be  appointed,  and  they  must  make 
an  appraisement  thereof  in  the  same  manner  as  in  case  of 
an  original  appraisement  of  an  estate.  This  may  be  done 
at  any  time  before  the  sale  or  the  confirmation  thereof. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.     83,  357;     83,  358. 

§  1551.     Purchase  money  on  sale  on  credit,  how  secured. 

The  executor  or  administrator  must,  when  the  sale  is  made 
upon  a  credit,  take  the  notes  of  the  purchaser  for  the  pur- 
chase money,  with  a  mortgage  on  the  property  to  secure 
their  payment.     En.  March  11,  1872. 

Prob.  Act,  sec.  168.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

§  1552.  Return  of  proceedings  and  hearing.  Setting 
aside  sale.  Resale.  Tue  executor  or  administrator,  after 
making  any  sale  of  real  estate,  must  make  a  return  of  his 
proceedings  to  the  court,  which  must  be  filed  in  the  office 
of  the  clerk  at  any  time  subsequent  to  the  sale.  A  hear- 
ing upon  the  return  of  the  proceedings  may  be  asked  for 
in  the  return  or  by  petition  subsequently,  and  thereupon 
the  clerk  must  fix  the  day  for  the  hearing,  of  which  notice 
of  at  lea  it  ten  days  must  be  given  by  the  clerk  by  notices 
posted  in  three  public  places  in  the  county  or  by  publica- 
tion in  a  newspaper,  and  must  briefly  indicate  the  land 
sold,  the  sum  for  which  it  was  sold,  and  must  refer  to  the 
return  for  further  particulars.  Upon  the  hearing,  the  court 
must  examine  the  return  and  witnesses  in  relation  to  the 
same,  and  if  the  proceedings  were  unfair  or  the  sum  bid 
disproportionate  to  the  value,  and  if  it  appears  that  a  sum 
exceeding  such  bid  at  least  ten  per  cent  exclusive  of  a  new 
sale  may  be  obtained,  the  court  may  vacate  the  sale  and 
direct  another  to  be  had,  of  which  notice  must  be  given, 
and  the  sale  in  all  respects  conducted  as  if  no  previous 
sale  had  taken  place.  If  an  offer  of  ten  per  cent  more  in 
amount  than  that  named  in  the  return  be  made  to  the 
court,  in  writing,  by  a  responsible  person,  it  is  in  the  dis- 
cretion of  the  court  to  accept  such  offer  and  confirm  the 
sale  to  such  person,  or  to  order  a  new  sale.  En.  March  11, 
1872.     Am'd.  1880,  96;    1891,  427. 


5S3  SALES    AND    CONVETANCKS.  §§  1568,  1K4 

Cal.  Rep.  Cit.  49,  495;  49,  496;  50.  99;  115,  205;  115, 
206;  116,  409;  125,  433;  127,  544;  138,  197;  142,  157. 

Prob.  Act,  sec.  169.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  643;  1864,  370. 

Cal.  Rep.  Cit.  20,  125;  48,  385. 

Sales  under  will:   Post,  sec.  1561. 

Notice  of  petition  for  confirmation  of  sale,  description 
of  property  by  reference  in:   Post,  sec.  1712. 

Attorney,  court  may  appoint,  to  represent  party:  Post, 
sec.  1718. 

§  1553.  May  file  objections,  when  and  who.  When  re- 
turn of  the  sale  is  made  and  filed,  any  person  interested  in 
the  estate  may  file  written  objections  to  the  confirmation 
thereof,  and  may  be  heard  thereon,  when  the  return  is 
heard  by  the  court  or  judge,  and  may  produce  witnesses 
in  support  of  his  objections.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     98,  605. 

Prob.  Act,  sec.  170.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  644. 

Cal.  Rep.  Cit.  9,  128. 

§  1554.  When  order  of  confirmation  is  to  be  made  and 
wlien  not.  If  it  appears  to  the  court  that  the  sale  was 
legally  made  and  fairly  conducted,  and  that  the  sum  bid 
was  not  disproportionate  to  the  value  of  the  property 
sold,  and  that  a  greater  sum,  as  above  specified,  cannot 
be  obtained,  or  if  the  increased  bid  mentioned  in  section 
fifteen  hundred  and  fifty-two  be  made  and  accepted  by  the 
court,  the  court  must  make  an  order  confirming  the  sale, 
and  directing  conveyances  to  be  executed.  The  sale,  from 
that  time,  is  confirmed  and  valid,  and  a  certified  copy  of 
the  order  confirming  it  and  directing  conveyances  to  be 
executed,  must  be  recorded  in  the  ofiice  of  the  recorder  of 
the  county  in  which  the  land  sold  is  situated.  If,  after 
the  confirmation,  the  purchaser  neglects  or  refuses  to 
comply  with  the  terms  of  sale,  the  court  may,  on  motion 
of  the  executor  or  administrator,  and  after  notice  to  the 
purchaser,  order  a  resale  to  be  made  of  the  property.  If 
the  amount  realized  on  such  resale  does  not  cover  the 
bid  and  the  expenses  of  the  previous  sale,  such  purchaser 
is  liable  for  the  deficiency  to  the  estate.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.     98,  613;   102,  .575;   115,  200;   125,  433. 


§§  1555-1G57  SALES    AND    CONVEYANCES.  bSi 

Prob.  Act,  sec.  171.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1856,  20;  1861,  644. 

Cal.  Rep.  Cit.  9,  128;  9,  197;  19,  410;  20,  125;  49,  85. 

Proof  of  notice  before  sale  and  recital  in:  Post,  sec.  1556; 
recording  certified   copy:  Post,   sec.    1719. 

§  1555.  Conveyances.  Conveyances  must  thereupon  be 
executed  to  the  purchaser  by  the  executor  or  administrator, 
and  they  must  refer  to  the  orders  -of  the  court  authorizing 
and  confirming  the  sale  of  the  property  of  the  estate,  and 
directing  conveyances  thereof  to  be  executed,  and  to 
the  record  of  the  order  of  confirmation  in  the  office  of 
the  county  recorder,  either  by  the  date  of  such  recording, 
or  by  the  date,  volume,  and  page  of  the  record,  and  such 
reference  shall  have  the  same  effect  as  if  the  orders  were 
at  large  inserted  in  the  conveyance.  Conveyances  so  made 
convey  all  the  right,  title,  interest,  and  estate  of  the  de- 
cedent in  the  premises,  at  the  time  of  his  death;  if  prior 
to  the  sale,  by  operation  of  law  or  otherwise,  the  estate 
has  acquired  any  right,  title,  or  interest  in  the  premises, 
other  than  or  in  addition  to  that  of  the  decedent  at  the  time 
of  his  death,  such  right,  title  or  interest,  also  passes  by 
Buch  conveyances.     En.  March  11,   1872.     Am'd.  1880,  96. 

Cal.  Rep.  Cit.     57,  459;    144,  668;   144,  669. 

Prob.  Act,  sec.  172.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1856,  20;  1861,  644. 

Cal.  Rep.  Cit.  9.  128;  19,  410. 

§  1556.     Order   of   confirmation,   what   to    state.     Before 

any  order  is  entered  confirming  the  sale,  it  must  be  proved 
to  the  satisfaction  of  the  court  that  notice  was  given  of 
the  sale  as  prescribed,  and  the  order  of  confirmation  must 
show  that  such  proof  was  made.     En.  March  11,  1872. 

Prob.  Act,  sec.  173.  En.  April  22,  1850.  Rep.  1851  489. 
En.   1851,   448. 

Notice  of  sale,  generally:  Ante,   sees.   1547,   1549. 

§  1557.  Sale  may  be  postpon::d.  If,  at  the  time  ap- 
pointed for  the  sale,  the  executor  or  administrator  deems 
it  for  the  interest  of  all  persons  concerned  therein  that  the 
same  be  postponed,  he  may  postpone  it  from  time  to  time, 
not  exceeding  in  all  three  months.     En.  March  11,  1872. 

Prob.  Act,  sec.  174.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,    448. 


5S5  SALES    AND    CONVEYANCES.  §§  ISSS-ljCl 

§  1558.  Notice  of  postponement.  In  esse  of  a  postyoue- 
ment,  notice  thereof  must  be  given,  by  a  public  declaration, 
at  the  time  and  place  first  appointed  for  the  sale,  and  if 
the  postponement  be  for  more  than  one  day,  further 
notice  must  be  given,  by  posting  notices  in  three  or  more 
public  places  in  the  county  where  the  land  is  situated, 
or  publishing  the  same,  or  both,  as  the  time  and  circum- 
stances will  admit.     En.  March  11,  1872. 

Prob.  Act,  sec.  175.  En.  April  22,  1850.  Kep.  ISbl,  4by. 
En.    1851,   448.     Am'd.    1861,    644. 

Publishing  notice:  Post,  sec.  1705. 

§  1559.  Sale  of  real  estate  to  pay  legacies.  En.  March 
11,   1872.     Rep.   1873-4,   371. 

Prob.  Act,  sec.  176.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  at.     31,  606;    31,  616. 

§  1560.  Where  payment  of  debts,  etc.,  provided  for  by 
will.  If  the  testator  makes  provision  by  his  will,  or  desig- 
nates the  estate  to  be  appropriated  for  the  payment  of  his 
debts,  the  expenses  of  administration,  or  family  expenses, 
they  must  be  paid  according  to  such  provision  or  desig- 
nation, out  of  the  estate  thus  appropriated,  so  far  as  the 
same  is  sufficient     En.  March  11,  1872. 

Cal.  Rep.  Cit.     57,  459;    120,  92;    145,  510;    145,  511. 

Prob.  Act,  sec.  177.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  31,  616;  31,  617. 

Insufficient  provision,  in  will,  effect  of:  Post,  sec.  1562. 
Payment   of    debts    and    expenses,    generally:  Ante,    sec. 
1516. 
Order  of  appropriation:  Civ.  Code,  sec.  1359. 

§  1561.  Sale  without  order.  When  property  is  directed 
by  the  will  to  be  sold,  or  authority  is  given  in  the  will 
to  sell  property,  the  executor  may  sell  any  property  of 
the  estate  without  order  of  the  court,  and  at  either  public 
or  private  sale,  and  with  or  without  notice,  as  the  executor 
may  determine;  but  the  executor  must  make  return  of 
such  sales,  as  in  other  cases;  and  if  directions  are  given 
in  the  will  as  to  the  mode  of  selling,   or  the  particular 


§§  1562,  1563  SALES    AND    CONVEYANCES.  6S6 

property  to  be  sold,  such  directions  must  be  observed. 
In  either  case  no  title  passes  unless  the  sale  be  confirmed 
by  the  court.  En.  March  11,  1872.  Am'd.  1873-4,  371; 
1880,    96. 

Cal.  Rep.  at.  49,  495;  50,  99;  57,  459;  88,  587;  92,  186; 
107,  593;  107,  595;  114,  660;  116,  407;  116,  408;  120, 
92;    125,   432;    139,   654;    144,   126. 

Prob.  Act,  sec.  178.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  645. 

Cal.  Rep.  Cit.  31,  606;  32,  441;  49,  84;  49,  85;  49,  86;  49, 
495. 


§  1562.  Where  provision  by  will  insufficient.  If  the 
provision  made  by  the  will,  or  the  estate  appropriated 
therefor,  is  insufficient  to  pay  the  debts,  expenses  of  ad- 
ministration, and  family  expenses,  that  portion  of  the  es- 
tate not  devised  or  disposed  of  by  the  will,  if  any,  must 
be  appropriated  and  disposed  of  for  that  purpose,  according 
to  the  provisions  of  this  chapter.     En.  March  11,  1872. 

Cal.   Rep.   Cit.     120,   92;    145,   509;    145,   510;    145,   511. 

Prob.  Act,  sec.  179.  En.  April  22,  1850.  Rep.  1851,  483. 
En.  1851,  448. 

Cal.  Rep.  Cit.     31,   607. 

§  1563.  Estate  subject  to  debts,  etc.  The  estate,  real 
and  personal,  given  by  will  to  legatees  or  devisees,  is 
liable  for  the  debts,  expenses  of  administration,  and  family 
expenses,  in  proportion  to  the  value  or  amount  of  the  sev- 
eral devises  or  legacies,  but  specific  devices  or  legacies 
are  exempt  from  such  liability,  if  it  appears  to  the  court 
necessary  to  carry  into  effect  the  intention  of  the  testator, 
and  there  is  other  sufficient  estate.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     Izl,  277;  131,  119;  142,  456. 

Prob.  Act,  sec.  180.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     31,  607;  31,  609;   31,  616;   31,  619;  33,  667; 
48,  193. 

Real  and  personal  property  alike  chargeable:  Ante,  sec. 
1516. 


587  SALES    AND   CONVEYANCES.  §§  1564-1567 

§  1564.  Contribution  among  legatees.  When  an  estate 
given  by  will  has  been  sold  for  the  payment  of  debts  or 
expenses,  all  the  devisees  and  legatees  must  contribute 
according  to  their  respective  interests  to  the  devisee  or 
legatee  whose  devise  or  legacy  has  been  taken  therefor, 
and  the  court,  when  distribution  is  made,  must,  by  decree 
for  that  purpose,  settle  the  amount  of  the  several  liabilities, 
and  decree  the  amount  each  person  shall  contribute,  and 
reserve  the  same  from  their  distributive  shares,  respec- 
tively, for  the  purpose  of  paying  such  contribution.  En. 
March  11,  1872.     Am'd.   1880,   97. 

Cal.  Rep.  Cit.    142,  456. 

Prob.  Act,  sec.  181.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     31,  607;  31,  609;  31,  616;  33,  667;  48,  192. 

§  1565.     Contract  for  purchase  of  lands  may  be  sold,  how. 

If  a  decedent,  at  the  time  of  his  death,  was  possessed  of  a 
contract  for  the  purchase  of  lands,  his  interest  in  such  land 
and  under  such  contracts  may  be  sold  on  the  application 
of  his  executor  or  administrator,  in  the  same  manner  as 
if  he  had  died  seised  of  such  land,  and  the  same  proceed- 
ings may  be  had  for  that  purpose  as  are  prescribed  in  this 
chapter  for  the  sale  of  lands  of  which  he  died  seised, 
except  as  hereinafter  provided.     En.   March   11,   1872. 

Prob.  Act,  sec.  182.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,   448. 

§  1566.  Conditions  of  sale.  The  sale  must  be  made 
subject  to  all  payments  that  may  thereafter  become  due  on 
such  contracts,  and  if  there  are  any  such,  the  sale  must 
not  be  confirmed  by  the  court  until  the  purchasers  execute 
a  bond  to  the  executor  or  administrator  for  the  benefit 
and  indemnity  of  himself  and  of  the  persons  entitled  to  the 
Interest  of  the  decedent  in  the  lands  so  contracted  for. 
In  double  the  whole  amount  of  payments  thereafter  to  be- 
come due  on  such  contract,  with  such  sureties  as  the  court 
or  judge  shall  approve.  En.  March  11,  1872.  Am'd.  1880, 
97. 

Prob.  Act,  sec.  183.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,   448. 

§  1567.  Purchaser  to  give  bond.  The  bond  must  be 
conditioned  that  the  purchaser  will  make  all  payments  for 


§§  1568,  1569  SALES   AND   CONVEYANCES.  688 

such  land  that  become  due  after  the  date  of  the  sale,  and 
will  fully  indemnify  the  executor  or  administrator  and  the 
persons  so  entitled,  against  all  demands,  costs,  charges, 
and  expenses,  by  reason  of  any  covenant  or  agreement 
contained  in  such  contract.     En.  March  11,  1872. 

Prob.  Act,  sec.  184.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1568.  Executor  to  assign  contract.  Upon  the  confir- 
mation of  the  sale,  the  executor  or  administrator  must 
execute  to  the  purchaser  an  assi'gnment  of  the  contract, 
which  vests  in  the  purchaser,  his  heirs  and  assigns,  all  the 
right,  title,  and  interest  of  the  estate,  or  of  the  persons 
entitled  to  the  Interest  of  the  -decedent,  in  the  lands  sold 
at  the  time  of  the  sale,  and  the  purchaser  has  the  same 
rights  and  remedies  against  the  vendor  of  such  land  as  the 
decedent  would  have  had  if  he  were  living.  En.  March  11, 
1872. 

Prob.  Act,  sec.  185.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1569.  Sales  by  executors  or  administrators  of  lands 
under  mortgage  or  lien.  When  any  sale  is  made  by  an 
executor  or  administrator,  pursuant  to  provisions  of  this 
chapter,  of  lands  subject  to  any  mortgage  or  other  lien, 
which  is  a  valid  claim  against  the  estate  of  the  decedent, 
and  has  been  presented  and  allowed,  the  purchase  money 
must  be  applied,  after  paying  the  necessary  expenses  of  the 
sale,  first,  to  the  payment  and  satisfaction  of  the  mort- 
gage or  lien,  and  the  residue.  If  any.  In  due  course  of  ad- 
ministration. The  application  of  the  purchase  money  to 
the  satisfaction  of  the  mortgage  or  lien  must  be  made  with- 
out delay;  and  the  land  Is  subject  to  such  mortgage  or 
lien  until  the  purchase  money  has  been  actually  so  ap- 
plied. No  claim  against  any  estate,  which  has  been  pre- 
sented and  allowed,  is  affected  by  the  statute  of  limita- 
tions, pending  the  proceedings  for  the  settlement  of  the 
estate.  The  purchase  money,  or  so  much  thereof  as  may  be 
sufficient  to  pay  such  mortgage  or  lien,  with  interest,  and 
any  lawful  costs  and  charges  thereon,  may  be  paid  Into 
the  court,  to  be  received  by  the  clerk  thereof,  whereuiwn 
the  mortgage  or  Hen  upon  the  land  must  cease  and  the 
purchase  money  must  be  paid  over  by  the  clerk  of  the  court 
without  delay,  in  payment  of  the  expenses  of  the  sale, 
and  in  satisfaction  of  the  debt  to  secure  which  the  mort- 


589  SALES   AND    CONVEYANCES.  §§  1570,  1571 

gage  or  ether  lien  was  taken,  and  the  surplus,  If  any,  at 
once  returned  to  the  executor  or  administrator,  unless  for 
good  cause  shown,  after  notice  to  the  executor  or  admin- 
istrator, the  court  otherwise  directs.  En.  March  11,  1872. 
Am'd.   1880,  97. 

Cal.  Rep.  Cit.  60,  260;  68,  54;  72,  548;  82,  100;  128,  391; 
135,  352;  138,  304;  138,  305;  138,  308;  1422,  473;  142, 
475;  146,  202. 

Prob.  Act,  sec.  186.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  645;  1863,  698. 

Cal.  Rep.  Cit.  9,  128;  18,  687;  27,  354;  27,  856;  29,  369. 

Prob.  Act,  sec.  187.     En.  April  22,  1850.     Rep.  1851,  489. 
En.  1851,  448. 
Claim  secured  by  mortgage:   Ante,  sees.  1497,  1500. 
Deposit  In  court:  Ante,  sees.  572-74;  post,  sec.  2104. 


§  1570.  The  holder  of  the  mortgage  or  lien  may  pur- 
chase the  lands.  His  receipt  to  the  amount  of  his  claim  a 
valid  payment.  At  any  sale,  under  order  of  the  court,  of 
lands  upon  which  there  is  a  mortgage  or  lien,  the  holder 
thereof  may  become  the  purchaser,  and  his  receipt  for  the 
amount  due  him  from  the  proceeds  of  the  sale  is  a  payment 
pro  tanto.  If  the  amount  for  which  he  purchased  the 
property  is  insufficient  to  defray  the  expenses  and  discharge 
his  mortgage  or  lien,  he  must  pay  to  the  court,  or  the  clerk 
thereof,  an  amount  suffijcient  to  pay  such  expenses.  En. 
March  11,  1872.     Am'd.  1880,  97. 

Cal.  Rep.  Cit.     128,  392;   138,  304. 


§  1571.  Administrator  and  executor  liable  for  miscon- 
duct in  sale.  If  there  is  any  neglect  or  misconduct  in  the 
proceedings  of  the  executor  in  relation  to  any  sale,  by 
which  any  person  Interested  in  the  estate  suffers  damage, 
the  party  aggrieved  may  recover  the  same  in  an  action 
upon  the  bond  of  the  executor  or  administrator,  or  other- 
wise.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     67,  248. 

Prob.  Act,  sec.  188.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Bond  of  executor,  etc.:  Ante,  sec.  1388. 


§§  1572-1574  SALES  AND  CONVEYANCES.  690 

§  1572.  Fraudulent  sales.  Any  executor  or  adminis- 
trator who  fraudulently  sells  any  real  estate  of  a  decedent 
contrary  to  or  otherwise  than  under  the  provisions  of  this 
chapter,  is  liable  in  double  the  value  of  the  land  sold, 
as  liquidated  damages,  to  be  recovered  in  an  action  by  the 
person  having  an  estate  of  Inheritance  therein.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     67,  248. 

Prob.  Act,  sec.  189.  En.  April  22,  1850.  Rep.  1851.  489. 
En.  1851,  448. 

Cal.  Rep.  Cit,  29,  35. 

Prohibited  connection  with  sale:   Post,  sec.  1576. 

§  1573.     Limitation    of    actions    for    vacating     sale,   etc. 

No  action  for  the  recovery  of  any  estate  soltl  by  an  ex- 
e'^utor  or  a-dmlnlstrator,  under  the  provisions  of  this 
chapter,  can  be  maintained  by  any  heir  or  other  per- 
son claiming  under  the  decedent,  unless  it  be  commenced 
within  three  years  next  after  the  settlement  of  the  final 
account  of  the  executor  or  administrator.  An  action  to 
set  aside  the  sale  may  be  instituted  and  maintained  at  any 
time  within  three  years  from  the  discovery  of  the  fraud, 
or  other  grounds  upon  which  the  action  is  based.  En. 
March  11,  1872.     Am'd.  1880,  112. 

Cal.  Rep.  Cit.     66,  111;   79,  15;   82,  180;   82,  181;   94,  250; 
122,  42;   122,  44;  122,  49;  122,  50;   125,  259;  125,  260. 

Prob.  Act,  sec.  190.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  37,  380;  47,  168;  57,  388;  79,  15;  122,  44. 

Persons  under  disability,  provision  inapplicable  to:  Post, 
sec.  1574. 

Discovery  of  the  fraud,  within  three  years  of:  Ante,  sec. 
338,  subd.   4. 

§  1574.     To  what  cases   preceding   section   not  to   apply. 

The  preceding  section  shall  not  apply  to  minors  or  others 
under  any  legal  disability  to  sue  at  the  time  when  the 
light  of  action  first  accrues;  but  all  such  persons  may  com- 
mence an  action  at  any  time  within  three  years  after  the 
removal  of  the  disability.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     82,  181;   121,  42;   122,  44;   122,  49;   122,  50. 


591  SALES    AND    CONVEYANCES.  §§   1375,  1576 

Prob.  Act,  sec.  191.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851.   448. 

Cal.  Rep.  Cit.     122,  44. 

§  1575.  Account  of  sale  to  be  returned.  "WTien  a  sale 
has  been  made  by  an  executor  or  administrator  of  any 
property  of  the  estate,  leal  or  personal,  he  must  return 
to  the  court,  within  thirty  days  thereafter,  an  account  of 
sales,  verified  by  his  affidavit,  or  in  case  of  his  absence 
ffom  the  county,  or  other  inability,  by  the  affidavit  of  his 
attorney.  If  he  neglects  to  malie  such  return,  he  may  be 
punished  by  attachment,  or  his  letters  may  be  revoked, 
one  day's  notice  having  been  first  given  him  to  appear  and 
show  cause  why  such  attachment  should  not  issue,  or  such 
revocation  should  not  be  made.  En.  March  11,  1872.  Am'd. 
1880.  98;  1897,  58. 

Prob.  Act.  sec.  192.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Attachment  for  contempt:   Ante,  sees.  1212  et  seq. 
Notice  by  citation:   Post,  sec.  1710;  also,  post,  sees.  1707- 
1709.       . 

§  1576.  Executor,  etc.,  not  to  be  purchaser.  No  ex- 
ecutor or  ad-ministrator  must,  directly  or  indirectly,  pur- 
chase any  property  of  the  estate  he  represents,  nor  must 
he  be  interested  in  any  sale.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     81,  509;   81,  515;   81,  516;   81,  517;   81.  519; 
81,  520;  93.  120;   96,  668;    108,  341. 

Prob.  Act,  sec.  193.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851.  448. 

Cal.  Rep.  Cit.  29,  34;  29,  36;  48.  121. 

Purchase  by  administrator,  etc,  forbidden:  Post,  sec. 
1617. 


5§  ISn,  1578  SAL^S   AND    CONVEYANCES.  B»a 


ARTICLE  V. 

fNew  article  added  Marct  15.  1887,  Stats.  1887,  p.  115.    In 
effect  immediately.] 

MORTGAGES   AND   LEASES  OF  REAL  BfiTATB. 

5  15TT.    Mortgage   of  real   property   at   decedent. 
§  1578.    Proceedings  to  obtain  order. 
§  1679.    To  obtain  lease  of  realty. 

§  1577.  Mortgage  of  real  property  of  decedent.  When- 
ever in  any  estate  now  being  administered  or  ttiat  may 
hereafter  be  administered  it  shall  appear  to  the  superior 
court,  or  a  judge  thereof,  to  be  for  the  advantage  of  the 
estate  to  raise  money  upon  a  note  or  notes,  to  be  secured 
by  a  mortgage  of  the  real  property  of  any  decedent,  or  of 
a  minor,  or  an  incompetent  person,  or  any  part  thereof, 
or  to  make  a  lease  of  said  realty  or  any  part  thereof,  the 
court  or  judge,  as  often  as  occasion  therefor  shall  arise 
in  the  administration  of  any  estate,  may,  on  a  petition, 
notice,  and  hearing  as  provided  in  this  article,  authorize, 
empower,  and  -direct  the  executor  or  administrator  or 
guardian  of  such  minor  or  incompetent  person  to  mortgage 
such  real  estate  or  any  part  thereof,  and  to  execute  a  note 
or  notes  to  be  secured  by  such  mortgage,  or  to  lease  such 
real  estate  or  any  part  thereof.  En.  Stats.  1887,  115.  Am'd. 
1891,  247;  1893,  72. 

Cal.  Rep.  Cit.     97,  457;   121,  650;   122,  lOO;   131,  118;  131, 
120;  131,  671;  133,  259;  144,  126;  146,  401. 

§  1578.  Proceedings  to  obtain  order.  To  obtain  an 
order  to  mortgage  such  realty,  the  proceedirkgs  to  be  taken 
and  the  effect  thereof  shall  be  as  follows: 

First.  The  executor  or  administrator  of  any  estate, 
or  guardian  of  any  minor  or  incompetent  person,  or  any 
person  interested  in  the  estates  of  such  decedents,  minors, 
or  incompetent  persons,  may  file  a  verified  petition  show- 
ing: 

1.  The  particular  purpose  or  purposes  for  which  it  i3 
proposed  to  make  the  note  or  notes  and  mortgage,  which 
shall  be  either  to  pay  the  debts,  legacies,  or  charges  of  ad- 
ministration, or  to  pay,  reduce,  extend,  or  renew  some 
lien  or  mortgage  already  subsisting  in  said  realty  or  some 
part  thereof. 


593  SALES   AND    CONVEYANCES.  S  1578 

2.  A  statement  of  the  debts,  legacies,  charges  of  adminis- 
tration, liens  or  mortgages  to  be  paid,  reduced,  extended, 
or  renewed,  as  the  case  may  be. 

3.  The  advantage  that  may  accrue  to  the  estate  from, 
raising  the  required  money  by  note  or  notes  and  mortgage 
or  providing  for  the  payment,  reduction,  extension,  or  re- 
newal of  the  subsisting  liens  or  mortgages,  as  the  case 
may  be. 

4.  The  amount  to  be  raised,  with  a  general  description 
of  the  property  proposed  to  be  mortgag^ed;  and, 

5.  The  names  of  the  legatees  and  devisees,  if  any,  and  of 
the  heirs  of  the  deceased,  or  of  the  minor,  or  of  the  incom- 
petent person,  as  the  case  may  be,  so  far  as  known  to  the 
petitioner. 

Second.  Upon  filing  such  petition,  an  order  shall  be 
made  by  the  court  or  judge,  requiring  all  persons  inter- 
ested in  the  estate  to  appear  before  the  court  or  judge,  at 
a  time  and  place  specified,  not  less  than  four  nor  more 
than  ten  weeks  thereafter,  then  and  there  to  show  cause 
why  the  realty  (briefly  indicating  it),  or  some  part  thereof, 
should  not  be  mortgaged  for  the  amount  mentioned  in  the 
petition  (stating  such  amount),  or  such  lesser  amount  as 
to  the  court  or  judge  shall  seem  meet,  and  referring  to  the 
petition  on  file  for  further  particulars. 

Third.  The  order  to  show  cause  may  be  personally 
served  on  the  persons  interested  in  the  estate,  at  least  ten 
days  before  the  time  appointed  for  hearing  the  petition,  or 
may  be  published  for  four  successive  weeks  in  a  newspaper 
of  general  circulation,  published  in  the  county. 

Fourth.  At  the  time  and  at  the  place  appointed  in  the 
order  to  show  cause,  or  at  such  other  time  and  place  to 
which  the  hearing  may  be  postponed  (the  power  to  make 
all  needful  postponements  being  hereby  vested  in  the 
court  or  judge),  having  first  received  satisfactory  proof  of 
personal  service  or  publication  of  the  order  to  show  cause, 
the  court  or  judge  must  proceed  to  hear  the  petition  and 
any  objections  that  may  be  filed  or  presented  thereto. 
Upon  such  hearing,  witnesses  may  be  compelled  to  attend 
and  testify,  in  the  same  manner,  and  with  like  effect,  as  in 
other  cases;  and  if,  after  a  full  hearing,  the  court  or  judge 
is  satisfied  that  it  will  be  for  the  advantage  of  the  estate  to 
mortgage  the  whole  or  any  portion  of  the  real  estate,  an 
order  must  be  made  authorizing,  empowering,  and  direct- 
ing the  executor  or  administrator,  or  the  guardian  of  such 
minor   or   incompetent   person,   to  make  such  mortgage,  and 

Code  Civil  Proc— 38. 


{  1578  SALES   AND  CONVEYANCES.  694 

a  promissory  note  or  notes  to  the  lender,  for  the  amount 
of  the  loan,  to  be  secured  by  said  mortgage;  the  order  may 
direct  that  a  lesser  amount  than  that  named  in  the  peti- 
tion be  borrowed,  and  may  prescribe  the  maximum  rate  of 
interest  and  period  of  the  loan,  and  may  direct  in  what 
coin  or  currency  it  shall  be  paid,  and  require  that  the 
interest  and  the  whole  or  any  part  of  the  principal  be  paid, 
from  time  to  time,  out  of  the  whole  estate  or  any  part 
thereof,  and  that  any  buildings  on  the  premises  to  be 
mortgaged  shall  be  insured  for  further  security  of  the  len- 
der, and  the  premiums  paid  from  such  income. 

Fifth.  After  the  making  of  the  order  to  mortgage,  the 
executor,  administrator,  or  guardian  of  a  minor  or  of  an 
incompetent  person  shall  execute  and  deliver  a  promissory 
note  or  notes  for  the  amount  and  period  specified  in  the 
order,  and  shall  execute,  acknowledge,  and  deliver  a  mort- 
gage of  the  premises,  setting  forth  in  the  mortgage  that  it 
is  made  by  authority  of  the  order,  and  giving  the  date  of 
such  order.  A  certified  copy  of  the  order  shall  be  recorded 
in  the  oflice  of  the  county  recorder  of  every  county  in 
which  the  encumbered  land,  or  any  portion  thereof,  lies. 
The  note  or  notes  and  mortgage  shall  be  signed  by  the 
executor,  administrator,  or  guardian  as  such,  and  shall 
create  no  personal  liability  against  the  person  so  signing. 

Sixth.  Every  note  or  notes  and  mortgage  so  made  shall 
be  effectual  to  mortgage  and  hypothecate  all  the  right,  title, 
interest,  and  estate  which  the  decedent,  minor,  or  incom- 
petent person  had  in  the  premises  described  therein  at  the 
time  of  the  death  of  such  decedent,  or  at  the  time  of  the 
appointment  of  the  guardian  of  such  minor  or  of  such  in- 
competent person,  or  prior  thereto,  and  any  right,  title,  or 
interest  in  said  premises  acquired  by  the  estate  of  such 
decedent,  minor,  or  incompetent  person,  by  operation  of 
law  or  otherwise,  since  the  time  of  the  death  of  such  de- 
cedent, or  the  appointment  of  the  guardian  of  such  minor 
or  incompetent  person.  Jurisdiction  of  the  court  to  admin- 
ister the  estate  of  such  decedent,  minor,  or  incompetent 
person  shall  be  effectual  to  vest  such  court  and  judge  with 
jurisdiction  to  make  the  order  for  the  note  or  notes  and 
mortgage,  and  such  jurisdiction  shall  conclusively  inure  to 
the  benefit  of  the  mortgagee  named  in  the  mortgage,  his 
heirs  and  assigns.  No  irregularity  in  the  proceedings  shall 
impair  or  invalidate  the  same  or  the  note  or  notes  and 
mortgage  given  in  the  pursuance  thereof,  and  the  mort- 
gagee, his  heirs  and  assigns,  shall  have  and    possess    the 


595  SALES   AXD   CONVEYANCES.  §  1579 

same  rights  and  remedies  on  the  note  or  notes  and  mort- 
gage as  if  it  had  been  made  by  the  decedent  prior  to  his 
death,  the  minor  after  reaching  the  age  of  maturity,  or  the 
incompetent  person  when  legally  competent;  provided, 
however,  that  upon  any  foreclosure,  if  the  proceeds  of  the 
encumbered  property  are  insuflBcient  to  pay  the  note  or 
notes,  and  mortgage,  no  judgment  or  claim  for  any  de- 
ficiency of  such  proceeds  to  satisfy  the  note  or  notes  and 
mortgage,  or  the  costs  or  expenses  of  sale,  shall  be  had  or 
allowed,  except  in  cases  where  the  note  or  notes  and  mort- 
gage were  given  to  pay,  reduce,  extend,  or  renew  a  lien  or 
mortgage  subsisting  on  the  realty,  or  some  part  thereof,  at 
the  time  of  the  death  of  the  decedent,  and  the  indebted- 
ness secured  by  such  lien  or  mortgage  was  an  allowed  and 
approved  claim  against  his  estate,  or  a  lien  upon  the  inter- 
est of  the  minor  in  said  real  estate  at  the  time  it  vested  in 
him,  or  upon  the  estate  of  the  incompetent  ut  the  time  the 
incompetency  of  the  incompetent  person  was  so  declared 
by  the  court;  and  provided  also,  that  in  cases  affecting  the 
estate  of  the  deceased  persons,  the  part  of  the  indebtedness 
remaining  unsatisfied  must  be  classed  and  paia  with  other 
demands  against  the  estate,  as  provided  in  article  three, 
chapter  ten,  of  title  (  ^ven,  part  three,  of  this  code,  with 
respect  to  mortgages  isisting  at  the  time  of  death.  En. 
Stats.  1887,  115.     Am'c'.   1891,  247;   1893,  72. 

Cal.  Rep.  Cit.  97,  457;  120,  611;  121,  650;  127,  204;  131, 
US;  131,  120;  ISl,  671;  131,  674;  133,  259;  145,  401. 
Subd.  1—139,  284;     144,  126.     Subd.  3—97,  458. 

§  1579.  To  obtain  lease  of  realty.  To  obtain  an  order 
to  lease  the  realty,  the  proceedings  to  be  taJten  and  the 
effect  thereof  shall  be  as  follows: 

First.  The  executor,  administrator,  guardian  of  a  minor 
or  of  an  incompetent  person,  or  any  person  interested  in 
the  estate  of  such  decedents,  minors,  or  incompetent  per- 
sons, may  file  a  verified  petition  showing: 

1.  The  advantage  or  advantages  that  may  accrue  to  the 
estate  from  giving  a  lease. 

2.  A  general  description  of  the  property  proposed  to  be 
leased. 

3.  The  term,  rental,  and  general  conditions  of  the  pro- 
posed lease. 

4.  The  names  of  the  legatees  and  devisees,  if  any,  and 
of  the  heirs  of  the  deceased,  or  of  the  minor,  or  of  the  in- 
competent person,  so  far  as  known  to  the  petitioner. 


{  1579  SALBJS   AND  CONVETANCE».  S9t 

Second.  Order  of  court  to  show  cause.  Upon  filing 
Buch  petition  an  order  shall  be  made  by  the  court  or  judge 
requiring  all  persons  interested  in  the  estate  to  appear 
before  the  court  or  judge,  at  a  time  and  place  specified, 
not  less  than  two  nor  more  than  four  weeks  thereafter, 
then  and  there  to  show  cause  why  the  realty  (briefly  in- 
dicating It)  should  not  be  leased  for  the  period  (stating 
it),  at  the  rental  mentioned  in  the  petition  (stating  it), 
and  referring  to  the  petition  on  file  for  further  particulars. 

Third.  Service  of  order.  The  order  to  show  cause  may 
be  personally  served  on  the  persons  interested  in  the  es- 
tate at  least  ten  days  before  the  time  appointed  for  hearing 
the  petition,  or  it  may  be  published  for  two  successive 
weelis  in  a  newspaper  of  general  circulation  in  the  county. 

Fourth.  Hearing;  witnesses;  appraisers;  minimum  ren- 
tal. At  the  time  and  place  appointed  to  show  cause,  or  at 
such  other  time  and  place  to  which  the  hearing  may  be 
I)ostponed  (the  power  to  make  all  needful  postponements 
being  hereby  vested  in  the  court  or  judge),  the  court  or 
judge  having  first  received  satisfactory  proof  of  personal 
service  or  publication  of  the  order  to  show  cause,  must 
proceed  to  hear  the  petition,  and  any  objections  that  may 
have  been  filed  or  presented  thereto.  Upon  such  hearing, 
witnesses  may  be  compelled  to  attend  and  testify  in  the 
same  manner  and  with  like  effect  as  in  other  cases,  and 
the  court  may,  in  its  discretion,  appoint  one  or  more,  not 
exceeding  three,  disinterested  persons  to  appraise  the  rental 
value  of  the  premises,  and  direct  that  a  reasonable  com- 
pensation for  the  services,  not  exceeding  five  dollars  p^r 
day,  be  paid  by  the  estate.  If,  after  a  full  hearing,  the 
court  or  judge  is  satisfied  that  it  will  be  for  the  advantage 
of  the  estate  to  lease  the  whole  or  any  portion  of  the  real 
estate,  an  order  must  be  made  authoriizng,  empowering, 
and  directing  the  executor,  administrator,  or  the  guardian 
to  make  such  lease.  The  order  may  prescribe  the  minimum 
rental  to  be.  received  for  the  premises,  and  the  period  of 
the  lease,  which  must  in  no  case  be  longer  than  for  ten 
years,  and  may  prescribe  the  other  terms  and  conditions 
of  such  lease. 

Fifth.  Conditions  of  lease.  After  the  making  of  the  or- 
der to  lease,  the  executor,  administrator,  or  guardian  of  a 
minor  or  of  an  incompetent  person  shall  execute,  acknowl- 
edge, and  deliver  a  lease  of  the  premises  for  the  term  and 
period  and  with  the  conditions  specified  in  the  order,  set- 


697  SALES   AND   CONVEYANCES.  J  1579 

ting  forth  in  the  lease  that  it  is  made  by  authority  of  the 
order,  and  giving  the  date  of  such  order.  A  certified  copy 
of  the  order  shall  be  recorded  in  the  office  of  the  county 
recorder  of  every  county  in  which  the  leased  land  or  any 
portion   thereof   lies. 

Sixth.  Effect  of  lease;  errors  and  omissions.  Every 
lease  so  made  shall  be  effectual  to  demise  and  let,  at  the 
rent,  for  the  term,  and  upon  the  conditions  therein  pre- 
scribed, the  premises  described  therein  Jurisdiction  of  the 
court  to  administer  the  estate  of  the  decedent,  the  minor, 
or  of  the  incompetent  person  shall  be  effectual  to  vest  such 
court  and  judge  with  jurisdiction  to  make  the  order  for 
the  lease,  and  such  jurisdiction  shall  conclusively  inure 
to  the  benefit  of  the  lessee,  his  heirs  and  assigns.  No 
omission,  error,  or  irregularity  in  the  proceedings  shall  im- 
pair or  invalidate  the  same,  or  the  lease  made  in  pursuance 
thereof.     En.   Stats.   1887,  117.     Am'd.   1891,  247;    1905,   149. 

Supp.  Cal.  Rep.  Cit.     144,  126. 

The  only  change  consists  In  the  substitution  of  the  word  "ten''  for 
"five."  to  make  this  section  correspond  with  the  present  form  of  sec- 
tion 718  of  the  Civil  Code,  which  was  amende-.l  in  1903.  Whoever 
amended  the  latter  section  at  the  last  session  of  the  le^slature  for- 
got to  amend  this  section  of  the  Code  of  CivU  Procedure  to  corre- 
spond   with   it. — Code   Comniissloner'B   Note. 


S  laSl  POWERS   AND    DUTIES. 


CHAPTER  VIII. 

OF    THE    POWERS    AND    DUTIES    OF    EXECUTORS    AND    ADMIN- 
ISTRATORS, AND  OF  THE   MANAGEMENT  OF  ESTATES. 

§  1581.    Executors  to  take  possession   of  the  entire  estate. 

§  1582.  Actions  may  be  maintained  by  and  against  executors  and  ad- 
ministrators. 

§  1583.     May   maintain   actions   for   waste,    conversion,    and   trerpass. 

§  1584.  Executor  and  adminstrator  may  be  sued  for  waste  or  trespass 
of  decedent. 

§  15S5.  Surviving  partner  to  settle  up  business.  Interest  therein  to  be 
appraised.     Account   to   be   rendered. 

§  15S6.  Actions  on  bond  of  executor  or  administrator  may  be  brought 
by   another   administrator. 

§  1587.    What  executors  are  not  parties   to  actions. 

§  1588.     May   compound. 

§  15S9.     Recovery    of    property    fraudulently   disposed    of   by    testator. 

§  1590.    When  executor   to  sue,   as  provided  In  preceding  section. 

§  1591.     Disposition   of   estate   recovered. 

§  1581.  Executors  to  take  possession  of  the  entire  estate. 
The  executor  or  administrator  must  take  into  his  possession 
all  the  estate  of  the  decedent,  real  and  personal,  and  collect 
all  debts  due  to  the  decedent  or  to  the  estate.  For  the  pur- 
pose of  bringing  suits  to  quiet  title,  or  for  partition  of  such 
estate,  the  possession  of  the  executors  or  administrators  is 
the  possession  of  the  heirs  or  devisees;  such  possession 
by  the  heirs  or  devisees  is  subject,  however,  to  the  posses- 
sion of  the  executor  or  administrator,  for  the  purposes  of 
administration,  as  provided  in  this  title.  En.  March  11, 
1872. 

Cal.  Rep.  Clt.  57,  388;  57,  459;  69,  158;  70,  360;  109,  423; 

110,  575;  112,  395;  119,  477;  121,  25;  126,  484;  131,  671; 

134,  83;  136,  34;  137,  355. 
Prob.  Act  sec.  194.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  645. 

Cal.  Rep.  Cit.  17,  536;  20,  163;  20,  627;  42,  463;  43,  551; 
44,  589;  57,  387;  57,  388. 

Possession  of  estate  by  executor  etc.:  Sec,  1452. 

Collection  of  debts,  when  no  liability  for  failure:  Sec 
1615. 

Executor  or  administrator,  suits  by  and  against:  Sees. 
1582-1587,  1589,   1590. 

Heir  may  maintain  ejectment  and  suit  to  quiet  title  dur- 
ing possession  of  executor,  etc.:   Sec.  1452. 


699  POWERS   AND   DUTIES.  §§  1582-1584 

§  1582.  Actions  may  be  maintained  by  and  against  exec- 
utors and  administrators.  Actions  for  the  recovery  of  any 
property,  real  or  personal,  or  for  the  possession  thereof,  or 
to  quiet  title  thereto,  or  to  determine  any  adverse  claim 
thereon,  and  all  actions  founded  upon  contracts,  may  be 
maintained  by  and  against  executors  and  administrators  in 
all  cases  in  which  the  same  might  have  been  maintained  by 
or  against  their  respective  testators  or  intestates,  hin. 
March  11,  1872.     Am'd.  1895,  81. 

Cal.  Rep.  Cit.  57,  241;  67,  570;  70,  360;  83,  512;  107,  112; 
110,  575;  119,  550;  126,  32;  126,  484;  128,  635;  136,  33; 
136,   36. 

Prob.  Act,  sec.  195.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1S51,  448. 

Cal.  Rep.  Cit.  19,  117;  20,  163;  20,  627;  26,  123;  50,  658. 

Executors  and  administrators — Suits  by,  after  substitu- 
tion: Ante,  sec.  385;  without  joining  beneficiaries:  Ante, 
sec.  369;  suits  against,  costs:   Ante,  sec.  1509. 

Suggestion  of  death  where  action  by  deceased  pending: 
Ante,  sec.  385. 

TbiJ  right  to  maintain  suits  for  the  possession  of  the  real 
property  of  the  estate:   Ante,  sec.  1452. 

§  1583.  May  maintain  actions  for  waste,  conversion,  and 
trespass.  Executors  and  administrators  may  maintain  ac- 
tion against  any  person  who  has  wasted,  destroyed,  taken, 
or  carried  away,  or  converted  to  his  own  use,  the  goods  of 
their  testator  or  intestate,  in  his  lifetime.  They  may  als-o 
maintain  actions  for  trespass  committed  on  the  real  estate 
of  the  decedent  in  his  lifetime.     En.  March  11,  1872. 

Prob.  Act,  sec.  196.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.    19,  117. 

§  1584.  Executor  and  administrator  may  be  sued  for 
waste  or  trespass  of  decedent.  Any  person  or  his  personal 
representatives  may  maintain  an  action  against  the  exec- 
utor or  administrator  of  any  testator  or  intestate  who  in 
his  lifetime  has  wasted,  destroyed,  taken,  or  carried  away, 
or  converted  to  his  own  use,  the  goods  or  chattels  of  any 
such  person,  or  committed  any  trespass  on  the  real  estate 
of  such  person.    En.  March  11,  1872. 

Cal.   Rep.   Cit.    57.   246;    108,   483. 


§§  1585-1587  POWERS    AND    DUTIES.  600 

Prob.  Act,  sec.  197,  En.  April  22,  1850.  Rep.  1851,  4Sy. 
En.  1851,  448. 

§  1585.  Surviving  partner  to  settle  up  business.  Interest 
therein  to  be  appraised.  Account  to  be  rendered.  When  a 
partnership  exists  between  the  decedent,  at  the  time  of  his 
death,  and  any  other  person,  the  surviving  partner  has  the 
right  to  continue  in  possession  of  the  partnership,  and  to 
settle  its  business,  but  the  interest  of  the  decedent  in  the 
partnership  must  be  included  in  the  inventory,  and  be  ap- 
praised as  such  other  property.  The  surviving  partner  must 
settle  the  affairs  of  the  partnership  without  delay,  and  ac- 
count with  the  executor  or  administrator,  and  pay  over 
such  balances  as  may  from  time  to  time  be  payable  to  him, 
in  right  of  the  decedent.  Upon  the  application  of  the 
executor  or  administrator,  the  court,  or  a  judge  thereof, 
may,  whenever  it  appears  necessary,  order  the  surviving 
partner  to  render  an  account,  and  in  case  of  neglect  or 
refusal  may,  after  notice,  compel  it  by  attachment;  and  the 
executor  or  administrator  may  maintain  against  him  any 
action  which  the  decedent  could  have  maintained.  En. 
March  11,   1872.     Am'd.   1880,  98. 

Cal.  Rep.  Cit.  57,  459;  65,  111;  68,  396;  68,  397;  70,  582; 
75,  462;  84,  94;  89,  551;  96,  72;  100,  614;  101,  562: 
105,  190;    107,  606;    110,  574;    138,   237. 

Prob.  Act,  sec.  198.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,    448. 

Cal.  Rep.  Cit.     16,  118;   34,  263. 

Interest  of  decedent,  in  partnership,  may  be  sold:  Ante, 
sec.   1524, 

§  1586.  Actions  on  bond  of  executor  or  administrator 
may  be  brought  by  another  administrator.  An  adminis- 
trator may,  in  his  own  name,  for  the  use  and  benefit  of  all 
parties  interested  in  the  estate,  maintain  actions  on  the 
same  estate.     En.   March  11,  1872. 

Cal.   Rep.   Cit.     123,  438. 

Prob.  Act,  sec.  199.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,    448. 

Bond  of  executor  or  administrator:   Sees.  1388  et  seq. 

§  1587.  What  executors  are  not  parties  to  actions.  In 
actions  by  or  against  executors,  it  is  not  necessary  to  join 


«01  POWERS   AND   DUTIES.  §§  IJSS,  15S9 

those  as  parties  to  whom  letters  were  issued,  but  who  have 
not   qualified.     En.   March   11,   1872. 

Prob.  Act,  sec.  200.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Parties,  beneficiaries  need  not  be  joined:   Ante,  sec.  369. 

§  1588.  May  compound.  Whenever  a  debtor  of  the  de- 
cedent is  unable  to  pay  all  his  debts,  the  executor  or 
administrator,  with  the  approbation  of  the  court,  or  a 
judge  thereof,  may  compound  with  him  and  give  him  a 
discharge,  upon  receiving  a  fair  and  just  dividend  of  his 
effects.  A  compromise  may  also  be  authorized  when  it  ap- 
pears to  be  just,  and  for  the  best  interest  of  the  estate. 
En.  March  11,  1872.     Am'd.  1880,  98. 

Cal.  Rep.  CIt.     57,  343;  86,  144;  123,  676;  135,  40. 

Prob.  Act,  sec.  201.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'«l.  1861,  645. 

§  1589.  Recovery  of  property  fraudulently  disposed  of 
by  testator.  When  there  is  a  deficiency  of  assets  in  the 
hands  of  an  executor  or  administrator,  and  when  the  de- 
cedent, in  his  lifetime,  has  conveyed  any  real  estate,  or 
any  rights  or  interests  therein  with  intent  to  defraud  his 
creditors,  or  to  avoid  any  right,  debt,  or  duty  of  any  per- 
son, or  has  so  conveyed  such  estate  that  by  law  the  deeds 
or  conveyances  are  void  as  against  creditors,  the  executor 
or  administrator  must  commence  and  prosecute  to  final 
judgment  any  proper  action  for  the  recovery  of  the  same; 
and  may  recover  for  the  benefit  of  the  creditor  all  such 
real  estate  so  fraudulently  conveyed;  and  may  also,  for 
the  benefit  of  the  creditors,  sue  and  recover  all  goods, 
chattels,  rights,  or  credits  which  have  been  so  conveyed 
by  the  decedent  In  his  lifetime,  whatever  may  have  been 
the  manner  of  such  fraudulent  conveyance.  En.  March  11, 
1872. 

Cal.  Rep.  CIt.  50,  302;  53,  715;  57,  241;  61,  152;  82,  160; 
85,  547;  85,  549;  89,  352;  104,  222;  106,  108;  106,  109; 
109,  667;  114,  529;  114,  535;  137,  158;  137,  170;  143,  614. 

Prob.  Act,  sec.  202.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  CIt.     48,  393. 

Executor  or  administrator  may  sue  without  joining  bene- 
ficiaries:   Ante,  sec.   869. 


§§  1590.  1591  POWERS   AND   DUTIES.  602 

Power  to  bring  action:  Ante,  sees.  1452,  1581-1583. 
Pradulent  conveyances:    Post,  sees.  1590,  1591. 

§  1590.  When  executor  to  sue,  as  provided  in  preceding 
section.  No  executor  or  administrator  is  bound  to  sue  for 
such  estate,  as  mentioned  in  the  preceding  section,  for 
the  benefit  of  the  creditors,  unless  an  application  of 
creditors,  who  must  pay  such  part  of  the  costs  and  expenses 
of  the  suit,  or  give  such  security  to  the  executor  or  ad- 
ministrator therefor,  as  the  court,  or  a  judge  thereof,  shall 
direct.     En.  March  11,  1872.     Ara'd.  1880,  98. 

Cal.  Rep.  Clt.     61,  152;  82,  160;  85,  547;  109,  667;  114,  535. 

Prob.  Act,  sec.  203.  En.  April  22,  1850.  Rep.  1851,  489, 
En.  1851,  448. 

Cal.  Rep.  Cit.     48,  393. 

§  1591.  Disposition  of  estate  recovered.  All  real  estate 
so  recovered  must  be  sold  for  the  payment  of  debts,  in 
the  same  manner  as  if  the  decedent  had  died  seised  thereof, 
upon  obtaining  an  order  therefor  from  the  court;  and  the 
proceeds  of  all  goods,  chattels,  rights,  and  credits  so  re- 
covered must  be  appropriated  In  payment  of  the  debts  of 
the  decedent  In  the  same  manner  as  other  property  in  the 
hands  of  the  executor  or  administrator.  En.  March  11, 
1872.     Am'd.    1880,    98. 

Cal.  Rep.  Cit.     57,  241;   82,  160;  85,  547. 

Prob.  Act,  sec.  204.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 


CONVfiYANCEJ.  (S  i5»7,  15»S 


CHAPTER  IX. 

OF   THE   CONVEYANCE   OF   REAL   ESTATE   BY   EXECUTORS   AND 

ADMINISTRATORS    IN    CERTAIN    CASES. 

I  1597.  Executor  to  complete  contracts  for  sale  of  real  estate. 

§  1598.  Petition  for  executor  to  make  conveyance,  and  notice  of  hear- 
ing. 

§  1599.  Interested   parties   may   contest. 

8  1600.  Conveyances  when  ordered   to  be  made. 

§  1601.  Execution   of   conveyance   and   record   thereof. 

§  1602.  Rights   of  petitioner   to   enforce   contract. 

I  1603.  Effect   of   conveyance. 

§  1604.  Effect  of  recording  a  copy  of  the  decree. 

§  1605.  Recording  decree  does  not  superse^3e  power  of  court  to  enforce 
It. 

§  1606.  "Where  party  to  whom  conveyance  to  be  made  Is  dead. 

§  1607.  Decree  may   direct  possession   to  be   surrendered. 

§  1597.  Executor  to  complete  contracts  for  sale  of  real 
estate.  When  a  person  who  is  bound  by  contract  in  writ- 
ing to  convey  any  real  estate,  or  to  transfer  any  personal 
property,  dies  before  malting  conveyance  or  transfer,  and 
in  all  cases  when  such  decedent,  if  living  might  be  com- 
pelled to  make  such  conveyance  or  transfer,  the  court, 
having  Jurisdiction  of  the  probate  proceedings  of  the  es- 
tate of  such  decedent,  may  make  a  decree  authorizing  and 
directing  the  executor  or  administrator  of  such  deceased 
person  to  convey  or  transfer  such  real  estate  or  personal 
property  to  the  person  entitled  thereto.  En.  March  11, 
1872.     Am'd.  1880,  9£f;   1905,  76. 

Cal.  Rep.  Cit.  49,  471;  49,  472;  58,  416;  64,  444;  74,  284; 
91,  416;   137,  478;  141,  850;  141,  425;  147,  458. 

Prob.  Act,  sec.  205.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1598.  Petition  for  executor  to  make  conveyance,  and 
notice  of  hearing.  On  the  presentation  of  a  verified  peti- 
tion by  any  person  claiming  to  be  entitled  to  such  coavey- 
ance  or  transfer  from  an  executor  or  administrator  of  such 
deceased  person,  setting  forth  the  facts.  Including  a  copy 
of  the  contract,  upon  which  the  claim  is  predicated,  the 
court,  or  a  judge  thereof,  must  appoint  a  time  and  place 
for  hearing  the  petition,  and  must  order  notices  thereof  to 
be  published  at  least  four  successive  weeks  before  such 
hearing,  in  such  newspaper  of  general  circulation  pub- 
lished in  the  county  in  which  the  court  Is  held,  as  the  court 
may  designate.  En.  March  11,  1872.  Am'd.  1880,  99;  1905, 
76. 


5§  1599-1601  CONVETANCE.  104 

Cal.   Rep.   Cit.     C4,   445;    91,   416;    124,  247;    124,   253;    124, 

254;   141,  350;   141,  425;   147,  458. 
Prob.   Act,  sec.   206.     En.   April   22,  1850.     Rep.  1851,  489. 
En.  1851,  448. 
Verification  of  pleadings:  Ante,  sec.  446. 
Publication  of  notice:   Post,  sec.  1706. 
Petition:  Ante,  sec.  1518. 

§  1599.  Interested  parties  may  contest.  At  the  time  and 
place  appointed  for  the  hearing,  or  at  such  other  time  to 
which  the  same  may  be  posti)oned,  upon  satisfactory  proof 
by  affidavit  or  otherwise,  of  the  due  publication  of  the  no- 
tice, the  court  shall  proceed  to  hear  the  saiti  petition,  and 
all  persons  interested  in  the  estate  may  appear  and  contest 
such  petition,  by  filing  their  objections  in  writing,  and  the 
court  may  examine,  on  oath,  the  petitioner  and  all  who 
may  be  produced  before  him  for  that  purpose.  En.  March 
11,  1872.     Am'd.  1905,  77. 

CJal.  Rep.  Cit     147,  458. 

Prob.  Act,  see.  207.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  646. 

§  1600.  Conveyances,  when  ordered  to  be  nnade.  If,  af- 
ter a  full  hearing  upon  the  petition,  and  objections,  if  any 
there  be,  and  examination  of  the  facts  and  circumstances 
of  the  claim,  the  court  is  satisfied  that  the  petitioner  Is 
entitled  to  a  conveyance  of  the  real  estate,  or  a  transfer  of 
the  personal  property,  described  in  the  petition,  a  decree, 
authorizing  and  directing  the  executor  or  administrator  to 
execute  a  conveyance  or  transfer  thereof  to  the  petitioner, 
must  be  made  and  entered  on  the  minutes  of  the  court 
En.  March  11,  1872.     Am'd.  1906,  77. 

Cal.  Rep.   Cit     91,  416;   147,  458. 

Prob.  Act,  sec.  208.  En.  April  22,  1850.  Rep.  1851.  489. 
En.  1851,  448.     Am'd.  1861,  646. 

§  1601.  Execution  of  conveyance  and  the  recording  of 
the  order  therefor.  The  executor  or  administrator  must 
execute  the  couYeyance  or  transfer  according  to  the  direc- 
tions contained  in  the  decree,  which  decree  shall  be  prima 
facie  evidence  of  the  correctness  of  the  proceedings,  and 
of  the  authority  of  the  executor  or  a-dministrator  to  make 
the  conveyance  or  transfer.  If  the  transaction  relate  to 
real  property,  a  certified  copy  of  the  decree  must  be  re- 
corded with  the  deed  in  the  oflBce  of  the  recorder  of  the 


1»5  CONVEYANCE.  5§  1802-1633 

eounty  in  which  the  land  conveyed  is  situated.  En.  March 
11,  1872.     Am'd.  1873-4,  371;   1905,  77. 

Cal.  Rep.  Cit.     147,  458. 

Prob.  Act,  sec.  209.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  646. 

§  16C2.  Rights  of  petitioner  to  enforce  the  contract.  If, 
upon  the  hearing,  as  hereinbefore  provided,  the  right  of 
the  petitioner  to  have  a  specific  performance  of  the  con- 
tract is  found  to  be  doubtful,  the  court  must  dismiss  the 
petition  without  prejudice  to  the  rights  of  the  petitioner, 
who  may,  at  any  time  within  six  months  after  such  dis- 
missal, proceed  by  action  to  enforce  a  specific  performance 
thereof.     En.   March  11,  1872.     Am'd.  1880,  99;   190i,  77. 

Cal.  Rep.  Cit.     61,  163;   141,  350;   141,  425;   147,  459. 

Prob.  Act,  sec.  210.  En.  April  22,  1850.  Rep.  1861,  489. 
En.  1851,  448.     Am'd.  1861,  646. 

§  1603.  Effect  of  conveyance.  Every  conveyance  or 
transfer  made  in  pursuance  of  a  decree  as  provided  In  this 
chapter,  shall  pass  title  to  the  property  contracted  for, 
as  fully  as  if  the  contracting  party  himself  was  still  living, 
and  executed  the  conveyance  or  transfer.  En.  March  11, 
1872.     Am'd.  1880,  99;   1905,  77. 

Prob.  Act,  sec.  211.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Conveyances  by  executor,  etc.:  Ante,  sec.  1555. 

§  1604.  Effect  of  recording  a  copy  of  the  decree.  A  copy 
of  the  decree  for  a  conveyance  or  transfer  as  provided  in 
this  chapter,  duly  certified  and  recorded  in  the  office  of  the 
recorder  of  the  county  in  which  the  property  is  situated, 
gives  the  person  entitled  to  the  conveyance  or  transfer  a 
right  to  the  possession  of  the  property  contracted  for,  and 
to  hold  the  same  according  to  the  terms  of  the  intended 
conveyance  or  transfer,  in  like  manner  as  if  the  same  had 
been  conveyed  or  transferred  in  pursuance  of  the  decree. 
En.  March  11,  1872.     Am'd.  1880,  99;  1905,  77. 

Prob.  Act,  sec.  212.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1605.  Recording  of  the  decree  does  not  supersede 
power  of  court  to  enforce  it.  The  recording  of  any  de- 
cree, as  provided  in  the  preceding  section,  shall  not  prevent 
the  court  making  the  decree  from  enforcing  the  same  by 
other  process.     En.  March  11,  1872.     Am'd.  1905,  77. 

Prob.  Act,  sec.  213.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,    448. 


5§  1606,  1607  ACCOUNTS.  608 

§  1606.  Where  party  to  whom  conveyance  to  be  made 
is  dead.  If  the  person  entitled  to  the  conveyance  or 
transfer  dies  before  the  commencement  of  the  proceed- 
ings therefor  under  this  chapter,  or  before  the  completion 
of  the  conveyance  or  transfer,  any  person  entitled  to  suc- 
ceed to  his  rights  in  the  contract,  or  the  executor  or  admin- 
istrator of  such  decedent,  may,  for  the  benefit  of  the  per- 
son so  entitled,  commence  such  proceedings  or  prosecute 
any  already  commenced,  and  the  conveyance  or  transfpr 
must  be  so  made  as  to.  vest  the  property  in  the  person  or 
persons  entitled  thereto,  or  in  the  executor  or  adminis- 
trator, for  their  benefit.  En.  March  11,  1872.  Am'd.  1905, 
77. 

Cal.   Rep.   Cit.     91,   416. 

Prob.  Act,  sec.  214.  En,  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1607.  Decree  may  direct  possession  to  be  surrendered. 
The  decree  provided  for  in  this  chapter  may  direct  the  pos- 
session of  the  property  therein  described  to  be  surrendered 
to  the  person  entitled  thereto  upon  his  producing  the  deed 
or  transfer  and  a  certified  copy  of  the  decree,  when,  by  the 
terms  of  the  contract,  possession  is  to  be  surrendered.  En. 
March  11,  1872.     Am'd.  1905,  78. 

Cal.  Rep.  Cit.     68,  416;   64,  444;   91,  416. 


CHAPTER  X, 

OF   ACCOUNTS    RENDERED    BY    EXECUTORS    AND    ADMINISTRA- 
TORS  AND  OF  THE  PAYMENT   OF  DEBTS. 

Article    I.    Liabilities   and    Componsatjon   of   Executors   and   Administra- 
tors,   §§    1612-1618. 
II.    Accounting   and    Settlements   by    Executors   and    Administra- 
tors,   §§    1622-1640. 
III.    The  payment  of  Debts  of  the  Estate,    §§   1643-1653. 

ARTICLE    I. 

LIABILITIES    AND     COMPENSATION     OF    EXECUTORS     AND    AD 
MINISTRATORS. 

§  1612.  When   executor  or  administrator  personally  liable. 

§  1613.  Executor  to  be  charged  with  all  estate,   etc. 

g  1614.  Not  to  profit  or   lose  by   estate. 

§  1615.  Uncollected   debts    without    fault. 

§  1616.  Compensation    of    the    executor    and    Administrator.    Comcensa- 

tion  of  attorney. 

§  1617.  Not   to   purchase   claims   against   the   estate. 

§  1618.  Executor's    and    administra,tor's    commissions. 

5  1619.  Allowed   fees  for  attorneys. 

Gen  Cit.  to  Art— Cal.  Rep.  Cit.    131,  427. 


607  ACCOUNTS.  §§  1612-1615 

§  1612.  When  executor  or  administrator  personally  lia- 
ble. No  executor  or  administrator  is  cliargeable  upon  any- 
special  promise  to  answer  damages  or  to  pay  the  debts 
of  the  testator  or  intestate  out  of  his  own  estate,  unless 
the  agreement  for  that  purpose,  or  some  memorandum  or 
note  thereof,  is  in  writing  and  signed  by  such  executor  or 
administrator,  or  by  some  other  person  by  him  thereunto 
specially   authorized.     En.   March   11,   1872. 

Gal.    Rep.    Cit.     101,    385;    117,    593. 

Prob.  Act,  sec.  215.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,    448. 

Compare:  Post,   sec.   1973,   subd.   2. 

§  1613.     Executor    to    be    charged    with    all    estate,    etc. 

Every  executor  and  administrator  is  chargeable  in  his 
account  with  the  whole  of  the  estate  of  the  decedent 
which  m.ay  come  into  his  possession,  at  the  value  of  the 
appraisement  contained  in  the  inventory,  except  as  pro- 
vided in  the  following  sections,  and  with  all  the  interest, 
profit  and  income  of  the  estate.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  70,  71;  74,  203;  74,  213;  74,  540;  92,  170; 
92,  174;   119,  584;   131,  36;   145,  233;   145,  349;    146,  141. 

Prob.  Act,  sec.  216.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,   448. 

Cal.  Rep.  Cit.     43,  549;   43,  550. 

§  1614.  Not  to  profit  or  lose  by  estate.  He  shall  not 
make  profit  by  of  the  increase,  nor  suffer  loss  by  the  de- 
crease or  destruction,  without  his  fault,  of  any  part  of  the 
estate.  He  must  account  for  the  excess  when  he  sells  any 
part  of  the  estate  for  more  than  the  appraisement,  and 
if  any  is  sold  for  less  than  the  appraisement,  he  is  not 
responsible  for  the  loss  if  the  sale  has  been  justly  made. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.     74,  540;    119,  584;   146,  141. 

Prob.  Act,  sec.  217.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,   448. 

Cal.   Rep.  Cit.     26,  429;    44,  588. 

Becoming   purchaser:   Ante,    sec.    1576. 

§  1615.  Uncollected  debts  without  fault.  No  executor  oi 
administrator  is  accountable  for  any  debts  due  to  the 
decedent,  if  it  appears  that  they  remain  uncollected  without 
his   fault.     En.   March    11,    1872. 

Cal.  Rep.  Cit.  74,  203;  109,  423;  123,  104;  131,  36;  133, 
615;    140,    398;    145,    233. 

Prob.  Act,  sec.  218.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,   448. 


§§   1616-161S  ACCOUNTS.  '  SUg 

§   1616.     Compensation    of    executor    and    administrator; 
compensation  of  attorney;  appeal  from  order  of  court.     He 

shall  be  allowed  all  necessary  expenses  in  the  care,  man- 
agement, and  settlement  of  the  estate,  and  for  his  services 
such  fees  as  provided  in  this  chapter;  but  when  the  de- 
cedent, by  his  will,  makes  some  other  provision  for  the  com- 
pensation of  his  executor,  that  shall  be  a  full  compensa- 
tion for  his  services,  unless,  by  a  written  instrument,  tiled 
in  the  court,  he  renounces  nil  claim  for  compensation  pro- 
vided by  in  the  will.  Any  attorney  who  has  rendered  ser- 
vices to  an  executor  or  administrator  may  at  any  time 
during  the  administration,  and  upon  such  notice  to  the  other 
parties  interested  in  the  estate  as  the  court  shall  by  ord^r 
require,  apply  to  the  court  for  an  allowance  to  himself  of 
compensation  therefor,  and  the  court  shall  on  the  hearing 
of  such  application  make  an  order  requiring  the  executor 
or  administrator  to  pay  to  such  attorney  out  of  the  estate 
such  compensation  as  to  the  court  shall  seem  proper.  Any 
payment  made  by  an  executor  or  administrator  in  conform- 
ity with  such  order  shall  be  allowed  by  the  court  in  his  ac- 
count. Any  attorney  making  such  application  to  the  court 
for  compensation  and  all  other  persons  interested  In  the 
estate  may  appeal  from  any  order  made  by  the  court  fixing 
the  amount  of  such  compensation.  En.  March  11,  187-. 
Am'd.  1873-4,  414;    1880,  99;    1905,  776. 

Cal.  Rep.  Cit.     65,  379;  88,  4;   101,  385;  108,  4.58;   112,  453; 

120,  454;    121,  191;    123,  660;    123,   663;    125,   196;    125, 

197;    138,   370;    143,   144. 

Prob.  Act,  sec.  219.     En.  April  22,  1850.     Rep.  1851,  469. 
En.  1851,  448. 

Cal.  Rep.  Cit.     38,  87;    43,  551. 

Compensation  for  services — commissions,  where  no  pro- 
vision in  will,  etc.:   Post,  sec.  1618. 
Costs:  Ante,    sec.    1509. 

§  1617.     Not  to  purchase  claims  against  the  estate.     No 

administrator  or  executor  shall  purchase  any  clahn  against 
the  estate  he  represents;  and  if  he  pays  any  claim  for  less 
than  its  nominal  value,  he  is  only  entitled  to  charge  in  his 
account  the  amount  he  actually  paid.  En.  March  11,  1872. 
Cal.  Rep.  Cit.     93,  118;   93,  120;    146,  194. 

Prob.  Act,  sec.  220.     En.  April  22,    1850.     Rep.  1851.  489. 
En.   1851,  448. 

Cal.  Rep.  Cit.     9,  636;  21,  32. 


609  ACCOUNTS.  §§  161S,  161S 

Purchasing  property  of  estate:  Ante,  sec.  1576;  fraudu- 
lently selling  realty:  Ante,  sec.  1572. 

§  1618.  Executors  and  administrators,  commissions  al- 
lowed to.  When  no  compensation  is  provided  by  the  will, 
or  the  executor  renounces  all  claim  thereto,  he  must  De 
allowed  commissions  upon  the  amount  of  estate  accounted 
for  by  him,  as  follows:  for  the  first  thousand  dollars,  at 
the  rate  of  seven  per  cent;  for  the  next  nine  thousand  dol 
lars,  at  the  rate  of  four  per  cent;  for  the  next  ten  thousand 
dollars,  at  the  rate  of  three  per  cent;  for  the  next  thirty 
thousand  dollars,  at  the  rate  of  two  per  cent;  for  the  next 
fifty  thousand  dollars,  at  the  rate  of  one  per  cent;  and  for 
all  above  one  hundred  thousand  dollars,  at  the  rate  of  one- 
half  of  one  per  cent.  The  same  commissions  shall  be 
allowed  to  administrators.  In  all  cases,  such  further  al- 
lowance may  be  made  as  the  court  may  deem  just  and 
reasonable  for  any  extraordinary  service,  but  the  total 
amount  of  such  extra  allowance  must  not  exceed  one-half 
the  amount  of  commissions  allowed  by  this  section. 
Where  the  property  of  the  estate  is  distributed  in  kind,  and 
involves  no  labor  beyond  the  custody  and  distribution  of 
the  same,  the  commission  shall  be  computed  on  all  the  es- 
tate above  the  value  of  twenty  thousand  dollars,  at  one- 
half  of  the  rates  fixed  in  this  section.  Public  administrators 
shall  receive  the  same  compensation  and  allowances  as  ar.^ 
allowed  in  this  title  to  other  administrators.  All  contracts 
between  an  executor  or  administrator  and  an  heir,  devisee, 
or  legatee,  for  a  higher  compensation  than  that  allowed 
by  this  section,  shall  be  void.  En.  March  11,  1872.  Am  d. 
1873-4,  415;   1880,  100;    1881,  36;   1905,  727. 

Cal.    Rep.    Cit.     65,  379;     65,  381;     70,  71;     96,   527;     108, 

456;    110,  566;    119,  584;   121,  191;    123,  103;    124,  48; 

125,    197;     127,    188;     1S3,     463;     143,   508;     144,    556; 

144,  557;     146,  596. 

Prob.  Act,  sec.   221.     En.  April  22,  1850.     Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  646. 
Cal.  Rep.  Cit.     30,  113;    43,  550;    46,  572. 

§  1619.  Allowed  fees  for  attorneys;  extraordinaiy  ser- 
vice. Executors  and  administrators  shall  be  allowed  for 
fees  of  their  attorneys  for  conducting  the  ordinary  probate 
proceedings,  the  same  amounts  as  are  allowed  by  the  last 
section  as  compensation  for  executors  and  administrators 
for  their  own  services.    In  all  cases,  such    further    allow- 

Code  Civil  Proc— 39. 


{  1622  ACCOUNTS.  «1« 

ance  may  be  made  as  the  court  may  deem  just  and  reason- 
able for  any  extraordinary  service,  such  as  sales  or  mort- 
gages of  real  estate,  contested  or  litigated  claims  against 
the  estate,  litigation  in  regard  to  the  property  of  the  es- 
tate, and  such  other  litigation  as  may  be  necessary  for 
the  executor  or  administrator  to  prosecute  or  defend.  En. 
Stats.  1905,  727. 


ARTICLE  II. 

ACCOUNTING  AND  SETTLEMENTS   BY  EXECUTORS  AND  ADMIN - 
ISTR.\TORS. 

§  1€22.  To  render  exhibit  of  receipts  and  dlsbursementa,  and  claims  al- 
lowed. 

§  1623.  Citation  to  account  at  third  term. 

§  1624.  Petition  for  citation  to  render  final  or  other  accoont. 

§  1625.  Citation    to  account   on   application. 

§  1626.  Objections  to  account,  who  may  file. 

§  1G27.  Attachment   for   not   obeying  citation. 

§  16::8.  To   render   accounts   at   expiration    of   term. 

§  1629.  Executor   to   account   after   his   authority   revoked. 

§  1630.  Revoking    authority    of    executor,    when. 

§  1631.  To  produce  and  file  vouchers,   which  remain  In   court. 

§  1632.  Vouchers   for   Items    less   than    twenty    dollars,    when    accepted. 

§  1633.  Day  of  settlement  to  be  appointed,  and  must  give  notice  there- 
of.    Hearing. 

§  1634.  When  settlement  is  final,  notice  must  so  state. 

§  1635.  Interested   party   may   file   exceptions  to  account. 

§  1636.  All  matters  may  be  contested  by  the  heirs.     Hearing. 

§  1637.  Settlement    of    accounts    to    be    conclusive,    when   and    when    not. 

§  1638.  Proof  of  notice  of  settlement  of  accounts. 

§  1639.  In  case  of  death,    personal   representative   to  present   account. 

§  1640.  Moneys   invested   by   order   of  court. 

§  1622.  To  render  exhibit  of  receipts  and  disbursements 
and  claims  allowed.  Six  months  after  his  appointment 
and  at  any  time  when  required  by  the  court,  either  upon 
its  own  motion  or  upon  the  application  of  any  person  in- 
terested )n  the  estate,  the  executor  or  administrator  must 
render,  for  the  information  of  the  court,  an  exhibit  under 
oath,  showing  the  amount  of  money  received  and  expended 
by  him,  the  amount  of  all  claims  presented  against  the 
estate,  and  the  names  of  the  claimants,  and  all  other 
matters  necessary  to  show  the  condition  of  its  affairs. 
En.  March  11,   1872.     Am'd.  1880,  100. 

Cal.  Rep.  Cit.  109,  423;  112,  81;  127,  188;  131,  416; 
146,  594. 

Prob.  Act,  sec.  222.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  9.  636. 


m  ACCOUNTS.  §§  1623-1626 

§  1623.  Citation  to  account  at  third  term.  If  the  ex- 
ecutor or  administrator  fails  to  render  an  exhibit  for  six 
months  after  his  appointment,  the  court,  or  a  judge  there- 
of, must  cause  a  citation  to  be  issued  requiring  him  to  ap- 
pear and  render  it     En.  March  11,  1872.     Am'd.  1880,  100. 

Cal.  Rep.  Cit.     72,  24;    112,  179;     116,  451. 

Prob.  Act,  sec.  223.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Citation:    Post,  sees.  1707-1711. 

§  1624.  Petition  for  citation  to  render  final  or  other 
account.  Any  person  interested  in  the  estate  may,  at  any 
time  before  the  final  settlement  of  accounts,  present  his 
petition  to  the  court,  or  a  judge  thereof,  praying  that  the 
executor  or  admmistrator  be  required  to  appear  and  render 
such  exhibit,  setting  forth  the  facts  showing  that  it  is 
necessary  and  proper  that  such  an  exhibit  should  be  made. 
En.  March  11,  1872.     Am'd.  1880,  100. 

Cal.  Rep.  Cit.     80,  97;    119,  241.     Subd.  5—112,  441. 

Prob.  Act,  sec.  224.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1625.  Citation  to  account  on  application.  If  the  court 
or  a  judge  thereof,  is  satisfied,  either  from  the  oath  of 
the  applicant  or  from  any  other  testimony  offered,  that  the 
facts  alleged  are  true,  and  considers  the  showing  of  the 
applicant  sufficient,  he  must  direct  a  citation  to  be  issued 
to  the  executor  or  administrator,  requiring  him  to  appear, 
at  some  day  to  be  named  in  the  citation,  and  render  an 
exhibit  as  prayed  for.  En.  March  11,  1872.  Am'd.  1880, 
100. 

Cal.  Rep.  Cit.     112,  81;    116,  451. 

Prob.  Act,  sec.  225.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1626.  Objections  to  account,  who  may  file.  When 
an  exhibit  is  rendered  by  an  executor  or  administrator, 
any  person  interested  may  appear,  and  by  objections  in 
writing,  contest  any  account  or  statement  therein  con- 
tained. The  court  may  examine  the  executor  or  adminis- 
trator, and  if  he  has  been  guilty  of  neglect,  or  has  wasted, 
embezzled,  or  mismanaged  the  estate,  his  letters  must  be 
revoked.     En.  March  11,   1872. 

Cal.  Rep.  Cit.     123,  104. 

Prob.  Act,  sec.  226.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     26,  57. 


§§  1627-1629  ACCOUNTS.  812 

Any  person  interested:    Post,  sec.  1635. 

Revocation  for  misconduct:   Ante,  sees.  1436  et  seq. 

§  1627.  Attachment  for  not  obeying  citation.  If  any 
executor  or  administrator  neglects  or  refuses  to  appear 
and  render  an  exhibit,  after  having  been  duly  cited,  an  at- 
tachment may  be  issued  against  him,  and  such  exhibit 
onforced,  or  his  letters  may  be  revoked,  in  the  discretion 
f>f  the  court.     En.  March  11,  1872. 

Prob.  Act,  sec.  227.  En.  April  22,  1850.  Rep.  1851,  489. 
ri:n.  1851,  448. 

Cal.  Rep.   Cit.     26,  429. 

Contempt:   Ante,  sees.  1209  et  seq. 

§  1628.     To     render    accounts    at    expiration     of    term. 

Within  thirty  days  after  the  expiration  of  the  time  men- 
tioned in  the  notice  to  creditors  within  which  claims  must 
be  exhibited,  every  executor  or  administrator  must  render 
a  full  account  and  report  of  his  administration.  If  he  fails 
to  present  his  account,  the  court  or  judge  must  compel 
the  rendering  of  the  account  by  attachments,  and  any  per- 
son interested  in  the  estate  may  apply  for  and  obtain  an 
attachment;  but  no  attachment  must  issue  unless  a  cita- 
tion has  been  first  issued,  served,  and  returned,  requiring 
the  executor  or  administrator  to  appear  and  show  cause 
why  an  attachment  should  not  issue.  Every  account  must 
exhibit  all  debts  which  have  been  presented  and  allowed 
during  the  period  embraced  in  the  account.  En.  March  11, 
1872.     Am'd.  1875-6,  104. 

Cal.  Rep.  Cit.  72,  24;  109,  423;  112,  81;  133,  449;  143, 
481;    146,  194. 

Prob.  Act,  sec.  228.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  647. 

Cal.  Rep.  Cit.  9,  636;  26,  429;  30,  110;  55,  582. 

Account  of  administration — Final:   Post,  sees.  1647,  1652. 

Judge  may  receive  at  chambers:   Ante,  sec.  166. 

§  1629.  Executor  to  account  after  his  authority  re- 
vol<ed.  When  the  authority  of  an  executor  or  administrator 
ceases,  or  is  revoked  for  any  reason,  he  may  be  cited  to 
account  before  the  court  at  the  instance  of  the  person  suc- 
ceeding to  the  administration  of  the  same  estate,  in  like 
manner  as  he  might  have  been  cited  by  any  person  inter- 


613  ACCOUNTS.  §§  1630-1623 

ested  in  the  estate   during   the   time   he   was   executor   or 
administrator.     En.  March  11,  1872.     Am'd.  1880,  101. 

Cal.  Rep.  Cit.     52,  637;   74,  539. 

Prob.  Act,  sec.  230.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,    448. 

§  1630.  Revoking  authority  of  executor,  when.  If  the  ex- 
ecutor or  administrator  resides  out  of  the  county,  or  ab- 
sconds or  conceals  himself  so  that  the  citation  cannot  be 
personally  served,  and  neglects  to  render  an  account 
within  thirty  days  after  the  time  prescribed  in  this  article, 
or  if  he  neglects  to  render  an  account  within  thirty  days 
after  being  committed  where  the  attachment  has  been  ex- 
ecuted, his  letters  must  be  revoked.    En.  March  11,  1872. 

Prob.  Act,  sc.  230.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,    448. 

Compare:  Ante,   sec.   1439. 

§  1631.  To  produce  and  file  vouchers,  which  remain  in 
court.  In  rendering  his  account,  the  executor  or  adminis- 
trator must  produce  and  file  vouchers  for  all  charges,  debts, 
claims,  and  expenses  which  he  has  paid,  which  must  remain 
in  the  court;  and  he  may  be  examined  on  oath  touching 
such  payments,  and  also  touching  any  property  and  ef- 
fects of  the  decedent,  and  the  disposition  thereof.  When 
any  voucher  is  required  for  other  purposes,  it  may  be  with- 
drawn on  leaving  a  certified  copy  on  file;  if  a  voucher  is 
lost,  or  for  other  good  reason  cannot  be  produced  on  the 
settlement,  the  payment  may  be  proved  by  the  oath  of  any 
competent  withness.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     63,  349;   74,  202;   80,  173;    80,  176. 

Prob.  Act,  sec.  230.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  647. 

Vouchers — Required  of  claimant:  Ante,  sec.  1494;  want 
of:  Post,    sec.    1632. 

§  1632.  Vouchers  for  items  less  than  twenty  dollars, 
whien  accepted.  On  the  settlement  of  his  account  he  may 
136  allowed  any  item  of  expenditure  not  exceeding  twenty 
dollars,  for  which  no  voucher  is  produced,  if  such  item 
be  supported  by  his  own  uncontradicted  oath  positive  to 
the    fact    of    payment,    specifying    when,     where,    and    to 


J§  1633,  1€34  ACCOUNTS.  CI  4 

whom  it  was  made;  but  such  allowances  In  the  whole  must 
not  exceed  five  hundred  dollars  against  any  one  estate,  and 
if,  upon  such  settlement  of  accounts,  it  appear  that  debts 
against  the  deceased  have  been  paid  v/ithout  the  affidavli; 
and  allowance  •  prescribed  by  statute  or  sections  one 
thousand  four  hundred  and  ninety-four,  one  thousand  four 
hundred  and  ninety-five,  and  one  thousand  four  hundre'J 
and  ninety-six  of  this  code,  and  it  shall  be  proven  by  com- 
petent evidence  to  the  satisfaction  of  the  court  that  such 
debts  were  justly  due,  were  paid  in  good  faith,  that  th8 
amount  paid  was  the  true  amount  of  such  indebtedness 
over  and  above  all  payments  or  setoffs,  and  that  the  estate 
is  solvent,  it  shall  be  the  duty  of  the  said  court  to  allow  the 
said  sum  so  paid  in  the  settlement  of  said  accounts.  En. 
March  11,  1872.     Am'd.  1880,  101. 

Cal.  Rep.  Cit.  63,  650;  72,  340;  80,  173;  80,  176;  92,  2D4i 
115,  33;   127,  187. 

Prob.  Act,  sec.  232.  En.  April  22,  1850.  Rep.  1851,  483, 
En.    1851,   448. 

§  1633.  Day  of  settlement  to  be  appointed,  and  must 
give  notice  thereof.  Hearing.  When  any  account  Is  ren- 
dered for  settlement,  the  clerk  of  the  court  must  appoint  a 
day  for  the  settlement  thereof,  and  thereupon  give  notice 
thereof  by  causing  notices  to  be  posted  in  at  least  three 
public  places  in  the  county,  setting  forth  the  name  of  the 
estate,  the  executor  or  administrator,  and  the  day  appointed 
for  the  settlement  of  the  account.  If,  upon  the  final 
hearing  at  the  time  of  settlement,  the  court,  or  a  judge 
thereof,  should  deem  the  notice  Insufficient  from  any  cause, 
he  may  order  such  further  notice  to  be  given  as  may  seem 
to  him  proper.  En.  March  11,  1872.  Am'd.  1880,  101;  1891, 
428. 

Cal.  Rep.  Cit.     70,  149;  81,  437;  86,  554;  110,  561;  116,  580; 

117,  508;    118,  381;    120,  701;    121,  639;   129,  175. 
Prob.  Act,  sec.  233.     En.  April  22,  1850.     Rep.  1851,  489; 
En.  1851,   448.     Am'd.   1861,  233. 
Cal.   Rep.    Cit.     30,   110. 
Proof  of  notice  of  settlement:  Post,   §  1638. 

§  1634.  When  settlement  is  final  notice  must  so  state. 
If  the  account  mentioned  in  the  preceding  section  be  for 
a  final  settlement,  and  a  petition  for  the  final  distributioQ 
of  the  estate  be  filed  with  said  account,  the  notice  of  set- 


616  ACCOUNT&  SS  1635,  1639 

tlement  must  state  those  facts,  whicli  notice  must  I'O 
given  by  posting  or  publication  for  at  least  ten  days  prior 
to  the  day  of  settlement.  On  the  settlement  of  said  ac- 
count, distribution  and  partition  of  the  estate  to  all 
entitled  thereto  may  be  immediately  had  without  further 
notice  or  proceedings.  En.  March  11,  1872.  Am'd.  1873-4, 
372;   1875-6,  104;   1891,  428. 

Cal.  Rep.  Cit.  65,  869;  86,  554;  88,  879;  118,  881;  120,  701; 
122,  531;  125,  516;  131,  429;   141,  370. 

§  1635.  Interested  party  may  file  exceptions  to  account. 
On  the  day  appointed,  or  any  subsequent  day  to  which  the 
hearing  may  be  postponed  by  the  court,  any  person  in- 
terested In  the  estate  may  appear  and  file  his  exceptions 
In  writing  to  the  account,  and  contest  the  same.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     66,  242;  66,  243;   74,  204;  74,  205;   74.  209; 
74,   210;    116,   580;    123,   659;    127,  132;    143,   145;    148, 
195. 
Prob.  Act,  sec.  234.     En.  April  22,  1850.     Rep.  1851,  489. 
En.  1851,  448. 
Cal.  Rep.  Cit.    26,  57;   29,  519;   30,  110. 

§  1636.  All  matters  may  be  contested  by  the  heirs. 
Hearing.  All  matters,  including  allowed  claims  not  passed 
upon  on  the  settlement  of  any  former  account,  or  on  ren- 
dering an  exhibit,  or  on  making  a  decree  of  sale,  may  be 
contested  by  the  heirs,  for  cause  shown.  The  hearing  and 
allegations  of  the  respective  parties  may  be  postponed  from 
time  to  time,  when  necessary,  and  the  court  may  appoint 
one  or  more  referees  to  examine  the  accounts,  and  mak? 
report  thereon,  subject  to  confirmation;  and  may  allo-v 
a  reasonable  compensation  to  the  referees,  to  be  paid 
out  of  the  estate  of  the  decedent.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  62,  187;  62,  415;  67,  84;  72,  340;  74,  208; 
74,  568;  88,  35;  121,  639;  125,  362;  131,  417;  141,  16; 
143,   481;    146,  195. 

Prob.  Act,  sec.  235.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  235. 

Cal.  Rep.  Cit.  37,  426;  131,  417. 

Prob.  Act,  sec.  236.     En.  April  22,  1850.     Rep.  1851,  489. 
En.   1851,  448.     Am'd.  1861,  236. 
Cal.    Rep.    Cit.     30,    110. 
Referees:  Ante,   sees.   638-645. 


§§  1637-1639  .  ACCOUNTS.  «M 

§  1637.  Settlement  of  c'.ccounts  to  be  conclusive,  when 
and  when  not.  The  settlement  of  the  account  and  the 
allowance  thereof  by  the  court,  or  upon  appeal,  Is  conclu- 
sive against  all  persons  in  any  way  interested  In  the 
estate,  saving,  however,  to  all  persons  laboring  under 
any  legal  disability,  their  right  to  move  for  cause  to 
reopen  and  examine  the  account,  or  to  proceed  by  ao- 
tion  against  the  executor  or  administrator,  either  in- 
dividually or  upon  his  bond,  at  any  time  before  final  dla- 
tribution;  and  in  any  action  brought  by  any  such  per- 
son, the  allowance  and  settlement  of  the  account  la  prima 
facie  evidence  of  Its  correctness.  En.  March  11,  1872. 
Am'd.  1873-4,  372. 

Cal.  Rep.  Clt.  53,  685;  54,  257;  72,  315;  80,  170;  83,  294; 
87,  483;  118,  381;  119,  582;  123,  659;  129,  387;  131,  429; 
146,  195. 

Prob.  Act,  sec.  237.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Clt.     24,  94;  30,  111;  86,  655;  37,  426;   54,  257. 

Conclusiveness  of   settlement:  Post,   sec.   1638. 


§  1638.  Proof  of  notice  of  settlement  of  accounts.  The 
acccount  must  not  be  allowed  by  the  court  until  it  is  first 
proved  that  notice  has  been  given  as  required  by  this 
chapter,  and  the  decree  must  show  that  such  proof  was 
made  to  the  satisfaction  of  the  court,  and  is  conclusive 
evidence  of  the  fact.    En.   March  11,   1872. 

Cal.  Rep.  Cit.     63,  522;  72,  340;  74,  208;   87,  483;   116,  580. 

Prob.  Act,  sec.  238.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.  30,  111. 


§  1639.  In  case  of  death,  personal  representative  to 
present  account.  If  any  executor  or  administrator  dies, 
his  accounts  may  be  presented  by  his  personal  represen- 
tatives to,  and  settled  by,  the  court  in  which  the  estate  of 
which  he  was  executor  or  administrator  is  being  adminis- 
tered, and,  upon  petition  of  the  successor  of  such  deceased 
executor  or  administrator,  such  court  may  compel  the 
personal  representatives  of  such  deceased  executor  or  ad- 
ministrator to  render  an  account  of  the  administration  of 


C17  ACCOUNTS.  }$  1540,  16-13 

their  testator  or  intestate,  and  must  settle  such  account 
as  in  other  cases.  En.  Stats.  1873-4,  373.  Rep.  1905,  242. 
En.    1905,    216. 

This  is  a  new  section,  the  inatter  in  the  present  section  1639  having 
been  transferred  to  section  1527.  The  new  section  authorizes  the  per- 
sonal representatives  of  a  deceased  executor  or  administrator  to  pre- 
sent and  have  settled  the  account  of  such  deceased.  At  present  there 
Is  no  way  of  settling  such  accounts  except  by  suit  in  equity,  which 
la  expensive,  unnecessary,  and  less  expeditious  than  the  mode  pro- 
posed.— Code  Commissioner's  Note. 

§  1640.  Moneys  invested  by  order  of  court  Pending  the 
settlement  of  any  estate,  on  the  petition  of  any  party  inter- 
ested therein,  and  upon  gocxi  cause  shown  therefor,  the 
court  may  order  any  moneys  in  the  hands  of  the  executors 
or  administrators  to  be  invested  for  the  benefit  of  the 
estate  in  securities  of  the  United  States  or  of  this  state. 
Such  order  can  only  be  made  after  publication  of  notice  of 
the  petition  in  some  newspaper,  to  be  designated  by  the 
court  or  a  judge  thereof.  En.  Stats.  1873-4,  373.  Am'd. 
1880,  101. 

CaL  Rep.  Cit.    117,  507. 


ARTICLE  rn. 

THE   PAYMENT   OF  DEBTS   OF  THE   ESTATR. 

{  1643.    Order   In   which   debts   to  be  paid. 

§  1644.     Where  property  Insufficient   to  pay  mortgage. 

§  1645.     Estate   insufficient,    a  dividend   to   be   paid. 

§  1646.     Funeral  expenses  and   expenses   of   last   sickneas. 

I  1647.  Order  for  payment  of  debts  and  discharge  of  tbc  executor  or 
administrator. 

§  1648.     Provision   for  disputed   and  contingent  claims. 

§  1649.  After  decree  for  payment  of  debts,  executor  personally  liable 
to   creditors. 

§  1650.  Claims  not  included  In  order  for  payment  of  debts,  how  dis- 
posed of. 

§  1651.    Order   for   payment   of  legacies   and  extension   of   time. 

§  1652.     Final   accounts,    when   to   be   made. 

§  1653.     Neglect    to   render   final    account,    how   treated. 

§  1643.  Order  in  which  debts  to  be  paid.  The  debts  of 
the  estate,  subject  to  the  provisions  of  section  twelve  hun- 
dred and  fiTe,  must  be  paid  in  the  following  order: 

1.  Funeral  expenses; 

2.  The  expenses  erf  the  last  sickness; 

3.  Debts  having  preference  by  the  laws  of  the  United 
States; 

4.  Judgments  rendered  against  the  decedent  in  his  life- 
time, and  mortgages  in  the  order  of  their  date: 


55  16«-1646  ACCOUNTS.  6U 

6.  All  other  demands  against  the  estate.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.  52,  577;  57,  459;  88,  648;  120,  701;  124,  230; 
138.  304;  145,  409;  146,  201;  146,  202.  Subd.  1—131,  71, 
Subd.  4—117,  506;   122,  463;   138,  304. 

Prob.  Act,  sec.  239.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit     26,  66;  29,  368;  29,  380. 

Preferred  claims  for  wages:   Ante,  sec.  1205. 

Family  allowance:   Ante,  sec.  1467;   post,  sec.  1646. 

Mortgaged  real  estate:   Ante,  sec.  1569. 

§  1644.  Where  property  insufficient  to  pay  mortgage. 
The  preference  given  in  the  preceding  section  to  a  mort- 
gage only  extends  to  the  proceeds  of  the  property  mort- 
gaged. If  the  proceeds  of  such  property  is  insufficient  to 
pay  the  mortgage,  the  part  remaining  unsatisfied  must  be 
classed  with  other  demands  against  the  estate.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     129,  176;   146,  200;   146,  201;   146,  202. 

Prob.  Act,  sec.  240.  En.  April  22,  850.  Rep.  851,  489. 
En.  1851,  448. 

Proceeds  of  prc^erty  mortgaged:   Ante,  sec.  1569. 

§  1645.     Estate  insufficient,  a  dividend  to  be  paid.     If  the 

estate  is  insufficient  to  pay  all  the  debts  of  any  one  class, 
each  creditor  must  be  pard  a  diTidend  in  proportion  to  hia 
claim;  and  no  creditor  cf  any  one  class  shall  receive  any 
payment  until  all  those  of  the  preceding  class  are  fully 
paid.     'Em.  March  11,  1872. 

Cal.  Rep.  Cit.  57,  459;  58,  405;  58,  515;  61,  72;  146,  201; 
146,  202. 

Prob.  Act,  sec.  241.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     26,  66. 

§  1646.     Funeral  expenses  and  expenses  of  last  sickness. 

The  executor  or  administrator,  as  soon  as  he  has  sufficient 
funds  in  his  hands,  must  pay  the  funeral  expenses,  and 
expenses  of  the  last  sickness,  and  the  allowance  made  to 
the  family  of  the  decedent.  He  may  retain  in  his  hands 
the  necessary  expenses  of  administration,  but  he  is  not  ob- 
liged to  pay  any  other  debts  or  any  legacy  until,  as  pre- 
scribed in  this  article,  the  payment  has  been  ordered  by  the 
court.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  65,  379;  88,  647;  112,  527;  116,  409;  117, 
507;   119,  581;  120,  701. 


«19  ACCOUNTS.  {§  1647,  164S 

Prob.  Act  sec.  242.  En.  April  22,  1850.  Rep.  18-51,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     37,  428. 

§  1647.  Order  for  payment  of  debts  and  discharge  of  the 
executor  or  administrator.  Upon  the  settlement  of  the 
accounts  of  the  executor  or  administrator,  as  required  in 
this  chapter,  the  court  must  make  an  order  for  the  pay- 
ment of  the  debts,  as  the  circumstances  of  the  estate  re- 
quire. If  there  is  not  suflQcient  funds  in  the  hands  of  the 
executor  or  administrator,  the  court  must  specify  in  the 
decree  the  sum  to  be  paid  to  each  creditor.  If  the  whole 
property  of  the  estate  be  exhausted  by  such  pajinent  or 
distribution,  such  account  must  be  considered  as  a  final 
account,  and  the  executor  or  administrator  is  entitled  to 
his  discharge  on  producing  and  filing  the  necessary  vouch- 
ers and  proof  showing  that  such  payments  have  been  made, 
and  that  he  has  fully  complied  with  the  decree  of  the 
court.     En.  March  11,  1872.     Am'd.  1875-6,  104. 

Cal.  Rep.  Cit.  87,  481;  96,  475;  97,  387;  106,  155;  109,  423; 
117,  508;   120,  701;  143,  480;   145,  349. 

Prob.  Act,  sec.  243.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  648. 

Cal.  Rep.  Cit.  18,  431;  26,  431;  30,  111;  37,  428;  37,  429; 
55,  582. 

Settlement  of  accounts:  Ante.  sec.  1628. 

§  1648.     Provision  for  disputed  and  contingent  claims.    If 

there  is  any  claim  not  due,  or  any  contingent  or  disputed 
claim  against  the  estate,  the  amount  thereof,  or  such  part 
of  the  same  as  the  holder  would  be  entitled  to  if  the  claim 
were  due,  established,  or  absolute,  must  be  paid  Into  the 
court,  and  there  remain,  to  be  paid  over  to  the  party  when 
he  becomes  entitled  thereto;  or,  if  he  fails  to  establish  his 
claim,  to  be  paid  over  or  distributed  as  the  circumstances 
of  the  estate  require.  If  any  creditor  whose  claim  has 
been  allowed,  but  is  not  yet  due  appears  and  assents  to  a 
deduction  therefrom  of  the  legal  interest  for  the  time  the 
claim  has  yet  to  run,  he  is  entitled  to  be  paid  accordingly. 
The  p-ayments  provided  for  in  this  section  are  not  to  be 
made  when  the  estate  is  insolvent,  unless  a  pro  rata  dis- 
tribution is  ordered.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  58,  405;  58,  515;  61,  72;  67,  640;  96,  475; 
96,  476;   106,  155;   146,  200. 

Prob.  Act,  sec.  244.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

Cal.  Rep.  Cit.     18,  429;   18,  430;   18,  431;  55,  582. 


§§  1643-16n  ACCOUNTS.  «38 

§  1649.  After  decree  for  payment  of  debts,  executor  per- 
sonally liable  to  creditors.  When  a  decree  is  made  by  the 
court  for  the  payment  of  creditors,  the  executor  or  admin- 
istrator is  personally  liable  to  each  creditor  for  his  allowed 
claim,  or  the  dividend  thereon,  and  execution  may  be  is- 
sued on  such  decree,  as  upon  a  judgment  in  the  court,  in 
favor  of  each  creditor,  and  the  same  proceeding  may  be 
had  under  such  execution  as  under  execution  in  other 
cases.  The  executor  or  administrator  is  liable  therefor 
on  his  bond  to  each  creditor.  En.  March  11,  1872.  Am'd. 
1880,  101. 

Cal.  Rep.  Cit.     123,  337;  129,  387;   143,  478. 

Prob.  Act,  sec.  245.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

Cal.  Rep.  Cit     14,  130;   26,  431;  26.  432. 

§  1650.  Claims  not  included  in  order  for  payment  of 
debts,  how  disposed  of.  When  the  accounts  of  the  admin- 
istrator or  executor  have  been  settled,  and  an  order  made 
for  the  payment  of  debts  and  distribution  of  the  estate,  no 
creditor,  whose  claim  was  not  included  in  the  order  for 
I>ayment,  has  any  right  to  call  upon  the  creditors  who  have 
been  paid,  or  upon  the  heirs,  devisees,  or  legatees,  to  con- 
tribute to  the  payment  of  his  claim;  but  if  the  executor  or 
administrator  has  failed  to  give  the  notice  to  the  creditors, 
as  prescribed  in  section  fourteen  hundred  and  ninety-one, 
such  creditor  may  recover  on  the  bond  of  the  executor  or 
administrator  the  amount  of  his  claim,  or  such  part  there- 
of as  he  would  have  been  entitled  to,  had  it  been  allowed. 
This  section  shall  not  apply  to  any  creditor  whose  claim 
was  not  due  ten  months  before  the  day  of  settlement,  or 
whose  claim  was  contingent,  and  did  not  become  absolute 
ten   months  before  such   day.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  54,  370;  58,  515;  96,  475;  96,  476;  123, 
100. 

Prob.  Act,  sec.  246.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     55,  582. 

§  1651.  Order  for  payment  of  legacies  and  extension  of 
time.  If  the  whole  of  the  debts  have  been  paid  by  the 
first  distribution,  the  court  must  direct  the  payment  of 
legacies  and  the  distribution  of  the  estate  among  the  heirs, 
legatees,  or  other  persons  entitled,  as  provided  in  the  next 
chapter;  but  if  there  be  debts  remaining  unpaid,  or  if,  for 
other  reasons,  the  estate  be  not  in  a  proper  condition  to 


621  ACCOtJNTS.  §§  1652,  1653 

be  closed,  the  court  must  give  such  extension  of  time  as 
may  be  reasonable,  for  a  final  settlement  of  the  estate. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.  57,  459;  58,  515;  96,  476;  98,  605;  109, 
423. 

Prob.  Act,  sec.  247.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  648. 

Cal.  Rep.  Cit.    31,  111;    55,  582. 

§  1652,  Final  account,  when  to  be  made.  At  the  time 
designated  in  the  last  section,  or  sooner,  if  within  that 
time  all  the  property  of  the  estate  has  been  sold,  or  there 
are  sufficient  funds  in  his  hands  for  the  payment  of  all  the 
debts  due  by  the  estate,  and  the  estate  be  in  a  proper  con- 
dition to  be  closed,  the  executor  or  administrator  must 
render  a  final  account,  and  pray  a  settlement  of  his  admin- 
istration.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     109,  423;    122,  45. 

Prob.  Act,  sec.  248.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'H.  1861,  648. 

Cal.  Rep.  Cit.  30,  248. 

Settlement  of  accounts:    Ante,  sec.  1628. 

§  1653.     Neglect  to  render  final  account,  how  treated.     If 

he  neglects  to  render  his  account,  the  same  proceedings 
may  be  had  as  prescribed  in  this  chapter  in  regard  to  the 
first  account  to  be  rendered  by  him;  and  all  the  provisions 
of  this  chapter  relative  to  the  last-mentioned  account,  and 
the  notice  and  settlement  thereof,  apply  to  his  account 
presented  for  final  settlement.    En.  March  11,  1872. 

Prob.  Act,  sec.  249.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     9,  636;    30,  111. 

Proceedings  to  enforce  account:    Ante,  sees.  1628-1630. 


§§  1858,  1659  PARTITION   AND   SETTLEMENT. 


CHAPTER  XI. 

OF   THE    PARTITION,    DISTUIBUTION,    AND    FINAL   SETTLEMENT 
OF    ESTATES. 

Article    I.     Paitial    Distribution    Prior  to   Final    Settlenient,    §§    1G68-Ifi63. 
II.     Distribution    on    Final    Settlement,    §§    1661-1670. 
III.    Distribution    and    Partition,    §§    1G75-16S6. 

.IV.     Agents    for   ALsent    Interested    Parties.     Discliarge   of    Execu- 
tor or  Adnr>inistrator,    §§  1601-169S. 
V.    Accounts    of    Trustees.     Distribution,     §§     1699-170314. 


ARTICLE  I. 

PARTIAL   DISTRIBUTION    PRIOR    TO    FINAL    SETTLEMENT. 

§  1G5S.     Payment   of   legacies   upon   giving  bonds. 

§  1653.     Notice    of    application    for    legacies. 

§  1660.     Executor   or   other   peison   may    resist   application. 

§  16G1.     Decree    prayed    for   to   require    bor/J,    wliich   must   be   given. 

May   order    wbole   or   part   of    siiare    to   be    delivered.    Where 
partition   necessary,    how   made.     Costs. 

§  1662.    Order  for   payment  of  bond,    and   suit   thereon. 

§  1663.     Any   heir,    devisee,   or  legatee   may   petition   the  court   for   distri- 
bution   of   net   proceeds.     Order   of   court.     Bond. 

§  1658.  Payment  of  legacies  upon  giving  bonds.  At  any 
time  after  the  lapse  of  four  months  from  the  issuing  of 
letters  testamentary  or  of  administration,  any  heir,  dev- 
isee, or  legatee,  may  present  his  petition  to  the  court  for 
the  legacy  or  share  of  the  estate  to  which  he  is  entitled, 
to  be  given  to  him  upon  his  giving  bonds,  with  security, 
for  the  payment  of  his  proportion  of  the  debts  of  the  es- 
tate.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  57,  459;  63,  107;  65,  380;  74,  312;  81, 
437;  105.  371;  107,  594;  110,  561;  115,  G39;  119,  408; 
121,  127;  121,  393;  121,  394;  122,  530;  122,  531;  132, 
564;     133,   658. 

Prob.  Act,  sec.  250.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  648. 

Cal.  Rep.  Cit.  14,  112;  31,  618;  31,  619. 

Payment  of  legacies — Order  of  appropriation  for:  Civ. 
Code,  sec.  1360. 

Proportion  of  the  debts — For  which  legatee,  etc.,  liable: 
Civ.  Code,  sec.  1377;    see  ante,  sec.  1650. 

Partial  distribution:     Post,  sec.  1661. 

§  1659.  Notice  of  application  for  legacies.  Notice  of  the 
application  must  be  given  to  the  executor  or  administrator, 


S23  PARTITION   A>rD    SETTLEMENT.  §§  1C60,  1661 

personally,  and  to  all  persons  interested  in  the  estate,  in 
the  same  manner  that  notice  is  required  to  be  given  of  the 
settlement  of  the  account  of  an  executor  or  administrator. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.    81,  437;    110,  561. 

Prob.  Act,  sec.  251.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  648. 

Notice  of  settlement  of  account:   Ante,  sec.  1633. 

§  1660.     Executor  or  other  person  may  resist  application. 

The  executor  or  administrator,  or  any  person  interested  in 
the  estate,  may  appear  at  the  time  named  and  resist  the 
application,  or  any  other  heir,  devisee,  or  legatee  may 
make  a  similar  application  for  himself.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.     63,  107;    110,  561. 

Prob.  Act,  sec.  252.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Any  person  interested:  Ante,  sec.  1635. 

§  1661.  Decree  prayed  for  to  require  bond,  whicli  must 
be  given.  May  order  whole  or  part  of  share  to  be  deliv- 
ered. Where  partition  necessary,  how  made.  Costs.  If, 
at  the  hearing,  it  appear  that  the  estate  is  but  little  in- 
debted, and  that  the  share  of  the  party  applying  may  be 
allowed  to  him  without  loss  to  the  creditors  of  the  estate, 
the  court  must  make  an  order  in  conformity  with  the 
prayer  of  applicant,  requiring; 

1.  Each  heir,  legatee,  or  devisee,  obtaining  such  order, 
before  receiving  his  share,  or  any  portion  thereof,  to  exe- 
cute and  deliver  to  the  executor  or  administrator  a  bond, 
in  such  sum  as  shall  be  designated  by  the  court,  or  a  judge 
thereof,  v/ith  sureties  to  be  approved  by  the  judge,  payable 
to  the  executor  or  administrator,  and  conditioned  for  the 
payment,  whenever  required,  of  his  proportion  of  the  debts 
due  from  the  estate,  not  exceeding  the  value  or  amount  of 
the  legacy  or  portion  of  the  estate  to  which  he  is  entitled. 

2.  The  executor  or  administrator  to  deliver  to  the  heir, 
legatee,  or  devisee,  the  whole  portion  of  the  estate  to 
which  he  may  be  entitled,  or  only  a  part  thereof,  designat- 
ing it.  If,  in  the  execution  of  the  order,  a  partition  Is 
necessary  between  two  or  more  of  the  parties  ihterested,  it 


§§  1662,   1663  PARTITION    AND    SKTTLEMENT.  624 

must  be  made  in  the  manner  hereinafter  prescribed.  The 
costs  of  these  proceedings  shall  be  paid  by  the  applicant, 
or  if  there  be  more  than  one,  shall  be  apportioned  equally 
amongst  them.     En.  March  11,  1872.     Am'd.  1880,  102. 

Cal.  Rep.  Cit.  58,  515;  63,  107;  65.  379;  65,  380;  105, 
371;    121,  127;    121,  394;     145,  466;    147,  255. 

Prob.  Act,  sec.  253.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     14,  112;    20,  628. 

Prob.  Act,  sec.  254.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.    20,  628. 

Prob.  Act,  sec.  255.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Prob.  Act,  sec.  256.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Order — Not  made  if  any  taxes  unpaid:  Post,  sec.  16G9; 
recording:   Post,  sec.  1719. 

Partition — Manner  hereinafter  prescribed:  Post,  sees. 
1675  et  seq. 

§  1662.     Order  for   payment   of  bond,   and   suit   thereon. 

When  any  bond  has  been  executed  and  delivered  under  the 
provisions  of  the  preceding  section,  and  it  is  necessary 
for  the  settlement  of  the  estate  to  require  the  payment  of 
any  part  of  the  money  thereby  secured,  the  executor  or 
administrator  must  petition  the  court  for  an  order  requir- 
ing the  payment,  and  have  a  citation  issued  and  served  on 
the  party  bound,  requiring  him  to  appear  and  show  cause 
why  the  order  should  not  be  made.  At  the  hearing,  the 
court,  if  satisfied  of  the  necessity  of  such  payment,  must 
make  an  order  accordingly,  designating  the  amount  and 
giving  a  time  within  which  it  must  be  paid.  If  the  money 
is  not  paid  within  the  time  allowed,  an  action  may  be 
maintained  by  the  executor  or  administrator  on  the  bond. 
En.   March  11,  1872. 

Prob.  Act,  sec.  257.    En.  April  22,  1850.    Rep.  1851,  489. 

En.  1851,  448. 

Cal.  Rep.  Cit     31,  618;    31,  619. 

§  1663.  Any  heir,  devisee,  or  legatee  may  petition  the 
court  for  distribution  of  net  proceeds.  Order  of  court. 
Bond,     At  any  time  after  the  lapse  of  one  year  from  the 


fiS  PARTITION   AND    SETTLEMENT.  J  1663 

issuance  of  letters  testamentary,  or  of  administration,  any 
heir,  devisee^  or  legatee  may  present  his  or  her  petition  to 
the  court  ^'or  the  distribution  of  the  net  proceeds  of  the 
share  of  the  said  estate  to  which  he  or  she  will  be  entitled. 
Notice  of  the  application  must  be  given,  as  required  by  sec- 
tion sixteen  hundred  and  fifty-nine.  The  executor  or  ad- 
ministrator, or  any  other  person  interested  in  lae  estate, 
may  appear  at  the  time  named  and  resist  the  application,  or 
any  other  heir,  devisee,  or  legatee  may  make  a  similar  appli- 
cation for  himself.  If  at  the  hearing  it  appear  that  the  es- 
tate is  but  little  indebted,  and  that  the  share  of  the  party 
applying  may  be  allowed  to  him  without  loss  to  the  cred- 
itors of  the  e.state,  the  court  must  make  an  order  in  con- 
formity with  the  prayer  of  the  applicant,  requiring: 

1.  Each  heir,  legatee,  or  devisee,  obtaining  such  order, 
before  receiving  his  share,  or  any  portion  thereof,  to 
execute  and  deliver  to  the  executor  or  administrator  a 
bond,  in  such  sum  as  shall  be  designated  by  the  court,  or 
a  judge  thereof,  with  sureties  to  be  approved  by  the  judge, 
payable  to  the  executor  or  administrator,  and  conditioned 
for  the  payment,  whenever  required,  of  his  proportion  of 
the  debts  due  from  the  estate,  not  exceeding  the  amount 
or  portion  of  the  proceeds  of  the  estate  which  he  has  re- 
ceived; provided,  that  where  the  time  for  filing  or  present- 
ing claims  has  expired,  and  all  claims  that  have  been  al- 
lowed have  been  paid,  or  are  secured  by  mortgage  upon 
real  estate  sufficient  to  pay  them,  and  the  court  is  satisfied 
that  no  injury  can  result  to  the  estate,  the  court  may  dis- 
pense with  the  bond. 

2.  The  executor  or  administrator  to  deliver  to  the  heir, 
legatee,  or  devisee  the  proceeds  of  the  estate  to  which  he 
may  be  entitled,  or  only  a  part  thereof,  designating  it.  If, 
in  the  opinion  of  the  court,  it  be  necessary,  in  order  to 
ascertain  the  proceeds  that  any  or  all  of  the  heirs,  legatees, 
or  devisees  may  be  entitled  [to]  that  the  interest  of  any 
heir,  legatee,  or  devisee  in  one  or  more  pieces  or  parcels 
of  property  of  the  estate  shall  be  determined  or  ascertained, 
the  court  may  suspend  proceedings  and  direct  the  petitioner 
or  petitioners  to  take  proceedings  under  section  sixteen 
hundred  and  sixty-four  of  this  code  to  ascertain  the  interest 
the  petitioner  or  petitioners  will  have  under  the  will  in  any 
piece  or  parcel  of  property.  The  order  mnst  describe  the 
property  in  relation  to  which  proceedings  are  to  be  taken. 
Whenever  any  bond  has  been  executed  and  deliv^ed,  pro- 

Code  CivU  Proo.— 49. 


S  1664  PARTITION   AND    SETTUilMENT.  Ol 

ceedings  upon  any  such  bond  may  be  taken  under  section 
sixteen  hundred  and  sixty-two.  The  cost  of  these  proceed- 
ings shall  be  paid  by  the  applicant,  or  if  there  be  more  than 
one,  shall  be  apportioned  equally  between  them.  En. 
Stats.   1889.   92. 

Cal.  Rep.  Cit.     105,  371;   109,  423;   115,  639;   121,  127;   121, 
131;  121,  392;  121,  394;  126,  251;  126,  252. 


ARTICLE    II. 

DISTRIBUTION   ON    FINAL.   SEnTLEMEJSTT. 

§  1664.  Procecdinss  In  the  nature  of  an  action  to  determine  heirship. 

§  1665.  Distribution   of  e&late,    how  made  and   to   whom. 

§  1606.  What    the   decree   must  contain,    and   is   final. 

§  1667.  Proceedings    for    distribution    of    estates    of   deceased   persons. 

g  166S.  Decree   to   be   made   only   after  notice. 

§  1669.  No    distribution    made    till    taxes   are    paid. 

§  1670.  Continuatioa   of    administi-ation. 

§  1664.  Proceedings  in  the  nature  of  an  action  to  deter- 
mine lieirship.  In  all  estates  now  being  administered,  or 
that  may  hereafter  be  administered,  any  person  claiming  to 
be  heir  to  the  deceased,  or  entitled  to  distribution  in  whole 
or  in  any  part  of  such  estate,  may,  at  any  time  after  the 
expiration  of  one  year  from  the  issuing  of  letters  testa- 
mentary or  of  administration  upon  such  estate,  file  a  peti- 
tion in  the  matter  of  such  estate,  praying  the  court  to 
ascertain  and  declare  the  rights  of  all  persons  to  said 
estate  and  all  interests  therein,  and  to  whom  distribution 
thereof  should  be  made.  Upon  the  filing  of  such  petition, 
the  court  shall  make  an  order  directing  service  of  notice  to 
all  persons  interested  in  said  estate  to  appear  and  show 
cause,  on  a  day  to  be  therein  named,  not  less  than  sixty 
days  nor  over  four  months  from  the  date  of  the  making  of 
such  order,  in  which  notice  shall  be  set  forth  the  name  of 
the  deceased,  the  name  of  the  executor  or  administrator 
of  said  estate,  the  names  of  all  persons  who  may  have  ap- 
peared claiming  any  interest  in  said  estate  in  the  course  of 
the  administration  of  the  same,  up  to  the  time  of  the  mak- 
ing of  said  order,  and  such  other  persons  as  the  court  may 
direct,  and  also  a   description   of   the  real   estate   whereof 


B27  PARTITION    AND    SETTLEMENT.  i  1664 

said  deceased  died  seised  or  possessed,  so  far  as  Itnown, 
described  with  certainty  to  a  common  intent,  and  requiring 
all  said  persons  and  all  persons  named  or  not  named,  having 
or  claiming  any  interest  in  the  estate  of  said  deceased,  at 
the  time  and  place  in  said  order  specified,  to  appear  and 
exhibit,  as  hereinafter  provided,  their  respective  claims  of 
heirship,  ownership,  or  interest  In  said  estate,  to  said  court, 
which  notice  shall  be  served  in  the  same  manner  as  a  sum- 
mons in  a  civil  action,  upon  proof  of  which  service,  by 
affidavit  or  otherwise,  to  the  satisfaction  of  the  court,  the 
court  shall  thereupon  acquire  jurisdiction  to  ascertain  and 
determine  the  heirship,  ownership,  and  interest  of  all 
parties  In  and  to  the  property  of  said  deceased,  and  such 
determination  shall  be  final  and  conclusive  in  the  adminis- 
tration of  said  estate  and  the  title  and  ownership  of  said 
property.  The  court  shall  enter  an  order  or  decree  estab- 
lishing proof  of  the  service  of  such  notice.  All  persons 
appearing  within  the  time  limited,  as  aforesaid,  shall  file 
their  written  appearance  In  person  or  through  their  au- 
thorized attorney,  such  attorney  filing  at  the  same  time 
written  evidence  of  his  authority  to  so  appear,  entry  of 
which  appearance  shall  be  made  In  the  minutes  of  the  court 
and  In  the  register  of  proceedings  of  said  estate.  And  the 
court  shall,  after  the  expiration  of  the  time  limited  for 
appearing  as  aforesaid,  enter  an  order  adjudging  the  default 
of  all  persons  for  not  appearing  as  aforesaid,  who  shall  not 
have  appeared  as  aforesaid.  At  any  time  within  twenty 
days  after  the  date  of  the  order  or  decree  of  the  court 
establishing  proof  of  the  service  of  such  notice,  any  of  such 
persons  so  appearing  may  file  his  complaint  In  the  matter 
of  the  estate,  setting  forth  the  facts  constituting  his  claim 
of  heirship,  ownership,  or  interest  in  said  estate,  with  such 
reasonable  particularity  as  the  court  may  require,  and 
serve  a  copy  of  the  same  upon  each  of  the  parties  or  attor- 
neys who  shall  have  entered  their  written  appearance  as 
aforesaid,  if  such  parties  or  such  attorneys  reside  within 
the  county;  and  in  case  any  of  them  do  not  reside  within 
the  county,  then  service  of  such  copy  of  said  complaint 
shall  be  made  upon  the  clerk  of  said  court  for  them,  and 
the  clerk  shall  forthwith  mail  the  same  to  the  address  of 
such  party  or  attorney  as  may  have  left  with  said  clerk  his 
postofflce  address.  Such  parties  are  allowed  twenty  days 
after  the  service  of  the  complaint,  as  aforesaid,  within 
which  to  plead  thereto,  and  thereafter  such  proceedings 
shall  be  had  upon  such  complaint  as  in  this  code  provided 


§  1664  PARTITION   AND   SETTLEMENT.  (28 

In  case  of  an  ordinary  civil  action;  and  the  Issues  of  law 
and  of  fact  arising  in  the  proceeding  shall  be  disposed  of 
In  like  manner  as  issues  of  law  and  fact  are  herein  pro- 
vided to  be  disposed  of  in  civil  actions,  with  a  like  right 
to  a  motion  for  a  new  trial  and  appeal  to  the  supreme  court; 
and  the  provisions  In  this  code  contained  regulating  the 
mode  of  procedure  for  the  trial  of  civil  actions,  the  motion 
for  a  new  trial  of  civil  actions,  statments  on  motion  for  a 
new  trial,  bills  of  exception,  and  statements  on  appeal,  as 
also  in  regard  to  undertakings  on  appeal,  and  the  mode  of 
taking  and  perfecting  appeals,  and  the  time  within  which 
such  appeals  shall  be  taken,  shall  be  applicable  thereto; 
provided,  however,  that  all  appeals  herein  must  be  taken 
within  sixty  days  from  the  date  of  the  entry  of  the  judg- 
ment or  the  order  complained  of.  The  party  filing  the 
petition  as  aforesaid,  if  he  file  a  complaint,  and  If  not,  the 
party  first  filing  such  complaint,  shall,  in  all  subsequent 
proceedings,  be  treated  as  the  plaintiff  therein,  and  all 
other  parties  so  appearing  shall  be  treated  as  the  defend- 
ants In  said  proceedings,  and  all  such  defendants  shall  set 
forth  In  their  respective  answers  the  facts  constituting  their 
claim  of  heirship,  ownership,  or  interest  in  said  estate, 
with  such  particularity  as  the  court  may  require,  and  serve 
a  copy  thereof  on  the  plaintiff.  Evidence  In  support  of  all 
Issues  may  be  taken  orally  or  by  deposition.  In  the  same 
mannner  as  provided  in  civil  actions.  Notice  of  the  taking 
of  such  depositions  shall  be  served  only  upon  the  parties 
or  the  attorneys  of  the  parties  so  appearing  In  said  proceed- 
ing. The  court  shall  enter  a  default  of  all  persons  falling 
to  appear,  or  plead,  or  prosecute,  or  defend  their  rights,  as 
aforesaid;  and  upon  the  trial  of  the  issues  arising  upon 
the  pleadings  in  such  proceeding,  the  court  shall  determine 
the  heirship  to  said  deceased,  the  ownership  of  his  estate, 
and  the  Interest  of  each  respective  claimant  thereto  or 
therein,  and  persons  entitled  to  distribution  thereof,  and 
the  final  determination  of  the  court  thereupon  shall  be 
final  and  conclusive  in  the  distribution  of  said  estate,  and  In 
regard  to  the  title  to  all  the  property  of  the  estate  of  said 
deceased.  The  cost  of  the  proceedings  under  this  section 
shall  be  apportioned  in  the  discretion  of  the  court.  In  any 
proceeding  under  this  section,  the  court  may  appoint  an 
attorney  for  any  minor  mentioned  in  said  proceedings  not 
having  a  guardian.  Nothing  in  this  section  contained  shall 
be  construed  to  exclude  the  right  upon  final  distribution  of 
auy  estate  to  contest  the  question  of  heirship,  title,  or  In- 


«2»  PARTITION   AND   SETTLEMENT.  |  1665 

terest  In  the  estate  so  distributed,  where  the  same  shall  not 
have  been  determined  under  the  provisions  of  this  section; 
but  where  such  questions  shall  have  been  litigated  under 
the  provisions  of  this  section,  the  determination  tliereof,  as 
herein  provided  shall  be  conclusive  in  the  distribution  of 
said  estate.     En.  Stats.  1885,  208. 

Cal.  Rep.  Clt.  78,  281;  73,  296;  73,  297;  78,  110;  78,  111 
78,  112;  78,  118;  81,  415;  81,  438;  81,  439;  81,  572 
88,  378;  88,  379;  88,  381;  89,  32;  93,  460;  93,  461 
93,  462;  93,  468;  93,  464;  96,  113;  96,  114;  96,  557 
102,  256;  102,  258;  102,  259;  102,  262;  108,  125;  110 
227;  110,  228;  110,  232;  110,  233;  112,  692;  112,  693 
115,  641;  118,  668;  121,  72;  122,  530;  122,  532;  123,  168 
124,  155;  127,  497;  127,  505;  127,  506;  129,  176;  133 
492;  138,  493;  183,  494;  133,  495;  135,  674;  135,  677 
187,  299;  137,  478;  141,  34;  141,  40;  141,  352;  141,  353 
148,  489;   148,  490;   148,  491;   148,  492;   147,  83. 

Distribution    not   to    be   granted    until    taxes    paid:    Sea 
post,  sec.  1669;   Pol.  Code,  sec.  8752. 

§  1665.  Distribution  of  estate,  how  made  and  to  whom. 
Upon  a  final  settlement  of  the  accounts  of  the  executor 
or  administrator,  or  at  any  subsequent  time,  upon  the 
application  of  the  executor  or  administrator,  or  of  any 
heir,  legatee,  or  devisee,  the  court  must  proceed  to  dis- 
tribute the  residue  of  the  estate  In  the  hands  of  the  ex- 
ecutor or  administrator,  if  any,  among  the  persons  who  by 
law  are  entitled  thereto;  and  if  the  decedent  has  left  a 
surviving  child,  and  the  Issue  of  other  children,  and  any 
of  them,  before  the  close  of  administration,  have  died 
while  under  aige  and  not  having  been  married,  no  admin- 
istration on  such  deceased  child's  estate  is  necessary,  but 
all  the  estate  which  such  deceased  child  was  entitled  to 
by  Inheritance  must,  without  administration,  be  dis- 
tributed to  the  other  heirs  at  law.  A  statement  of  any  re- 
ceipts and  disbursements  of  the  executor  or  adminis- 
trator, since  the  rendition  of  his  final  accoimts,  must  be 
reported  and  filed  at  the  time  of  making  such  distribu- 
tion, and  a  settlement  thereof,  together  with  an  estimate 
of  the  expenses  of  closing  the  estate,  must  be  made  by 
the  court  and  included  In  the  order  or  decree;  or  the 
court  or  Judge  may  order  notice  of  the  settlement  of  such 
supplementary  acoount,  and  refer  the  same  as  In  other 
cases  of  the  settlement  of  accounts.     En.  March  11,  1872. 


j§  1CC6,  1667  PARTITION    AND   SETTLEMENT.  630 

Cal.  Rep.  Cit.  51,  569;  52,  96;  54,  210;  57,  423;  57,  459 
58,  114;  58,  518;  58,  575;  63,  523;  74,  515;  88,  379 
93,  463;  107,  594;  116,  361;  119,  557;  120,  142;  122,  530 
122,  531;  129,  175;  136,  419;  137,  356;  141,  371;  143, 
197;  143,  202;  143,  204. 

Pmb.  Act,  sec.  258.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  649;  1866,  329. 

Cal.  Rep.  Cit.  20,  628. 

Notice  of  settlement    of  account:   Ante,  sec.  1633. 
Distribution   of  property  of  absentee:    Post,   sec.   1693. 

§  1666.     What  the  decree  must  contain,  and  is  final.     In 

the  order  of  decree,  the  court  must  name  the  persons  and 
the  proportions  or  parts  to  which  each  shall  be  entitled, 
and  such  persons  may  demand,  sue  for,  and  recover  their 
respective  shares  from  the  executor  or  administrator,  or 
any  person  having  the  same  in  possession.  Such  order  or 
decree  is  conclusive  as  to  the  rights  of  heirs,  legatees, 
or  devisees,  subject  only  to  be  reversed,  set  aside,  or  modi- 
fied on  appeal.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  54,  23;  54,  305;  58,  114;  63,  457;  64,  332; 
74,  515;  74,  525;  74,  526;  82,  71;  100,  407;  102,  10; 
102,  542;  112,  400;  110,  361;  119.  147;  119,  151;  119, 
557;  119,  570;  121,  444;  122,  77;  122.  113;  122,  484; 
131,  76;  137,  357;  141,  371;  143.  197;  143.  202;  143, 
204;    144,  464;    144.  669. 

Prob.  Act.  sec.  259.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851.  448.  Am'd.  1866,  766. 

Cal.  Rep.  Cit.  20.  628. 

Recording:  Post,  sec.  1719;  taxes  payable  before:  Post, 
sec.  1669. 

Subsequent  issue  of  letters — On  discovery  of  estate:  Sec 
1698. 

§  1667.  Proceedings  for  distribution  of  estates  of  de- 
ceased persons.  Upon  application  for  distribution,  after 
final  settlement  of  the  accounts  of  administration,  if  the 
decedent  was  a  nonresident  of  this  state,  leaving  a  will 
which  has  been  duly  proved  or  allowed  in  the  state  of  his 
residence,  and  an  authenticated  copy  thereof  has  been  ad- 
mitted to  probate  in  this  state,  and  it  is  necessary,  in  order 
that  the  estate,  or   any  part  thereof,  may  be   distributed 


Sa  PARTITION  AKD   SETTLEMENT.  |5  1668,  1663 

aecordintg  to  the  will,  that  the  estate  in  this  state  should 
be  delivered  to  the  executor  or  administrator  in  the  state 
or  place  of  his  residence,  the  court  may  order  such  delivery 
to  be  made,  and,  if  necessary,  order  a  sale  of  the  real  es- 
tate, and  a  like  delivery  of  the  proceeds.  The  delivery, 
in  accordance  with,  the  order  of  the  court,  is  a  full  dis- 
charge of  the  executor  or  administrator  with  the  will  an- 
nexed, in  this  state,  in  relation  to  all  property  embraced 
in  such  order,  which,  unless  reversed  on  appeal,  binds  and 
concludes  all  parties  in  interest.  Sales  of  real  estate, 
ordered  by  virtue  of  this  section,  must  be  made  in  the 
same  manner  as  other  sales  of  real  estate  of  decedents  by 
order  of  the  court.    En.  March  11,  1872.    AmM.  1880,  102. 

Cal.  Rep.  Cit.     63,  456;   66,  435;   70,  407;  81,  521;  86,  553. 

Sales  of  real  estate:  Sees.  1536  et  seq. 

§  1668.  Decree  to  be  made  only  after  notice.  The  order 
or  decree  may  be  made  on  the  petition  of  the  executor  or 
administrator,  or  of  any  person  interested  in  the  estate. 
Wlhen  such  petition  is  filed  the  clerk  of  the  court  must  set 
the  petition  for  hearing  by  the  court  and  give  notice  there- 
of by  causing  notices  to  be  posted  in  at  least  three  public 
places  in  the  county,  setting  forth  the  name  of  the  estate, 
the  executor  or  administrator,  and  the  time  appointed  for 
the  hearing  of  the  petition.  If,  upon  the  hearing  of  the 
petition,  the  court,  or  a  judge  thereof,  should  deem  the 
notice  insufficient  from  any  cause,  he  may  order  such 
further  notice  to  be  given  as  may  seem  to  him  proper.  If 
partition  be  applied  for,  as  provided  in  this  chapter,  the 
decree  of  distribution  shall  not  devest  the  court  of  juris- 
diction to  order  partition,  unless  the  estate  is  finally 
closed.     En.  March  11,  1872.     Am'd.  1873-4,  373;   1893,  71. 

Cal.  Rep.  Cit.     58,  515. 

Prob.  Act,  sec.  260.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.    Am'd,  1861,  649. 

§  1669.  Distribution  of  estate  not  to  be  made  until  taxes 
are  paid.  Before  any  decree  of  distribution  of  an  estate 
is  made,  the  court  must  be  satisfied,  by  the  oath  of  the 
executor  or  administrator,  or  otherwise,  that  all  state, 
county  and  municipal  taxes,  legally  levied  upon  property 
of  the  estate,  and  any  inheritance  tax  which  is  due  and 
payable  have  been  fully  paid.  En.  March  11,  1872,  Am'd. 
1880,  102;  1905,  83. 


{  1670  PARTITION    AND-   SETTLEMENT.  tXZ 

Cal.   Rep  Clt     58,  515;    71,   207;    133,  184. 
Similar  provision:    Pol.   Code,  sec.  3752. 

§  1670.     Continuation    of    administration.     In    all    casea 

where  a  decedent  shall  have  left  a  will  in  and  by  the  terms 
of  which  the  testator  shall  have  limited  the  time  for  ad- 
ministration upon  an  estate  left  by  hLm,  and  the  executor 
and  all  of  the  legatees  or  devisees  named  in  the  will  shall 
file  and  present  to  the  court  a  petition,  in  writing,  repre- 
senting that  it  will  be  for  the  best  interests  of  the  estate 
and  of  the  beneficiaries  under  the  will  to  have  the  admin- 
istration upon  the  estate  continued  for  a  longer  period  of 
time  than  that  designated  in  such  will,  and  that  it  would 
be  injurious  to  the  estate  and  to  such  beneficiaries  to  have 
the  administration  brought  to  a  close  at  the  date  therefor 
designated  in  the  will,  the  court  shall  then  set  a  day  for 
the  hearing  of  said  petition;  and  notice  thereof  shall  be 
served  on  all  persons  interested  in  the  estate,  in  the  same 
manner  that  summons  in  civil  actions  is  served.  Upon 
the  day  set  for  such  hearing  (or  upon  some  other  day  to 
which  the  hearing  may  have  been  continued),  the  court 
shall  proceed  to  hear  proofs  touching  the  representations 
made  in  such  petition — and  any  person  interested  in  the 
estate  may  also  present  counter-proofs  in  opposition  to 
said  application;  and  if,  upon  such  hearing,  it  be  made  to 
appear  to  the  court  that  the  representations  made  by  the 
petitioners  in  their  said  petition  contained  be  true,  the 
court  may  then,  by  its  order  and  decree  in  that  behalf, 
decree  and  direct  that  the  administration  upon  the  estate 
continue  for  and  during  such  further  period  of  time  as  in 
its  judgment  will  best  subserve  the  interests  of  the  estate 
and  of  the  beneficiaries  under  said  will;  provided,  how- 
ever, that  if,  at  any  time  during  the  period  for  which  the 
administration  ujKjn  the  estate  shall  have  been  thus  con- 
tinued, the  executor,  or  any  one  or  more  of  the  legatees 
or  devisees,  shall  present  to  the  court  his  or  their  petition, 
representing  that  it  has  become  necessary  for  the  best  in- 
terests of  the  estate  and  of  the  beneficiaries  under  the  will 
to  have  the  administration  upon  the  estate  closed,  the 
court  shall  then  set  a  day  for  the  hearing  of  said  last- 
named  petition;  and  notice  thereof  shall  be  given  in  the 
same  manner,  and  the  same  proceedings  be  had  thereupon, 
as  shall  have  been  given  for  and  had  upon  the  hearing  of 
the  petition  asking  for  the  continuation  of  such  adminis- 
tration. And  if,  upon  such  hearing,  it  shall  be  made  to  ap- 


633  PARTITION   AND   SETTLEMENT.  §  1875 

pear  to  the  court  that  the  representations  made  by  such 
petitioners  or  petitioner  (as  the  case  may  be)  are  true, 
the  court  shall  then,  by  its  order  and  decree  in  that  be- 
half, decree  an-d  direct  that  the  administration  upon  the 
estate  be  closed  as  soon  thereafter  as,  under  the  circuim- 
stances,  shall  be  practicable.    En.  Stats.  1891,  423, 


ARTICTLE  in. 

DISTRIBUTION   AND   PARTITION, 

§  1675.  Estate  In  common      Commissioners. 

§  1676.  Partition   and   notice    thereof,    and    the    time    of   filing   petition. 

§  1677.  Estate   in  different   counties,    how  dlvidecl. 

I  1678.  Partition   may   be  made,   although  some  of   the   heirs,   etc,    have 

parted    with    their   Interest. 

§  1679.  Shares  to  be  set  out  by  metes  and  bounds. 

§  1C80.  Whole  estate  may  be  assigned  to  one,   In  certain  cases. 

I  1681.  Payments   for  eqnaUty  of  partiticai,   by   whom   an-d   how. 

§  1C82.  Estate    may    be   sold. 

§  1683.  To    give    notice    to    all    persons    and    guardians    before    partition. 

Duties    of    commissioners. 

§  1684.  To   make   report,    and   partition   to  be   recorded. 

§  1685.  When   commissioners   to   make   partition   are   not   necessary. 

§  1686.  Advancements    made    to    heirs. 

§  1675.  Estate  in  common.  Commissioners.  When  the 
estate,  real  or  personal,  assigned  by  the  decree  of  distribu- 
tion to  two  or  more  heirs,  devisees,  or  legatees,  is  in 
common  and  undivided,  and  the  respective  shares  are  not 
separated  and  distinguished,  partition  or  distribution  may 
be  made  by  three  disinterested  persons,  to  be  appointed 
commissioners  for  that  purpose  by  the  court,  who  must  be 
duly  sworn  to  the  faithful  discharge  of. their  duties,  a  cer- 
tified copy  of  the  order  of  their  appointment,  and  of  the 
order  or  decree  assigning  and  distributing  the  estate  must 
be  issued  to  them  as  their  warrant,  and  their  oath  must  be 
indorsed  thereon.  Upon  consent  of  the  parties,  or  when 
the  court  deems  it  proper  and  just,  it  is  sufficient  to  ap- 
point one  commissioner  only,  who  has  the  same  authority 
and  is  governed  by  the  same  rules  as  if  three  were  ap- 
pointed.    En.  March  11,  1872.     Am'd.  1880,  103. 

Cal.   Rep.  Cit     80,  496;     102,  8;     102,  10;     124,  432;     126, 
483. 


§§  1676-1678  PARTITION    AND    SETTLEMENT.  634 

Prob.  Act,  sec.  261.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  649. 

§  1676.  Partition  and  notice  thereof,  and  the  time  of 
filing  petition.  Such  partition  may  be  ordered  and  had  in 
the  superior  court  on  the  petition  of  any  person  interested. 
But  before  commissioners  are  appointed,  or  partition  or- 
dered by  the  court  as  directed  in  this  chapter,  notice 
thereof  must  be  given  to  all  persons  interested  who  reside 
in  this  state,  or  to  their  guardians,  and  to  the  agents,  at- 
torneys, or  guardians,  if  any  in  this  state,  of  such  as  re- 
side out  of  this  state,  either  personally  or  by  public  notice, 
as  the  court  may  direct.  The  petition  may  be  filed,  attor- 
neys, guardians,  and  agents  appointed,  and  notice  given 
at  any  time  before  the  order  or  decree  of  distribution,  but 
the  commissioners  must  not  be  appointed  until  the  order 
or  decree  is  made  distributing  the  estate.  En.  March  11, 
1872.     Am'd.  1880,  103. 

Cal.  Rep.  Cit.     102,  10;     102,  11. 

Prob.  Act,  sec.  263.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  650. 

§  1677.     Estate  In  different  counties,  how  divided.     If  the 

real  estate  is  in  different  counties,  the  court  may,  if 
deemed  proper,  appoint  commissioners  for  all,  or  different 
commissioners  for  each  county.  The  estate  in  each  county 
must  be  divided  separately  among  the  heirs,  devisees,  or 
legatees,  as  if  there  was  no  other  estate  to  be  divided, 
but  the  commissioners  first  appointed  must,  unless  other- 
wise directed  by  the  court,  make  division  of  such  real  es- 
tate wherever  situated  within  this  state.  En.  March  11, 
1872.     Am'd.  1880,  103. 

Cal.  Rep.  Cit.     102,  IL 

Prob.  Act.  sec.  262.     En.  April  22,  1850.     Rep.  1851,  489. 

En.  1851,  448.     Am'd.  1861,  649. 

§  1678.  Partition  may  be  made,  although  some  of  the 
heirs,  etc.,  have  parted  with  their  interest.  Partition 
or  distribution  of  the  real  estate  may  be  made  as  pro- 
vided in  this  chapter,  although  some  of  the  original 
heirs,  legatees,  cr  devisees  may  have  conveyed  their 
shares  to  other  persons,  and  such  shares  must  be  assigned 
to  the  person  holding  the  same,  in  the  same  manner  as 
they  otherwise  would  have  been  to  such  heirs,  legatees, 
or  devisees.     En.  March  11,  1872. 


C35  PARTITION   AND   SETTLEMENT.  §§  1679,  16S0 

Cal.  Rep.  Cit.     58,  114;    74,  515;    74,  516;    82,  71;    92,  194; 

102,  9;     116,  362;     125,  461;     125,  462;     137,  357;     137, 

358;  141,  369;    141,  370;    141,  371. 
Prob.  Act,  sec.  264.     En.  April  22,  1850.     Rep.  1851.  489. 
En.  1851,  448. 
Cal.  Rep.  Cit.    18,  98. 

§  1679.     Shares    to    be    set  out    by    metes    and    bounds. 

When  both  distribution  and  partition  are  made,  the  several 
shares  in  the  real  and  personal  estate  must  be  set  out  to 
each  individual  in  proportion  to  his  right,  by  metes  and 
bounds,  or  description,  so  that  the  same  can  be  easily  dis- 
tinguished, unless  two  or  more  of  the  parties  interested 
consent  to  have  their  shares  set  out  so  as  to  be  held  by 
them  in  common  and  undivided.    En.  March  11,  1872. 

Prob.  Act.  sec.  265.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1680.  Whole  estate  may  be  assigned  to  one,  in  certain 
cases.  When  the  real  estate  cannot  be  divided  without 
prejudice  or  inconvenience  to  the  owners,  the  court  may 
assign  the  whole  to  one  or  more  of  the  parties  entitled  to 
share  therein,  who  will  accept  it,  always  preferring  the 
males  to  the  females,  and  among  children,  preferring  the 
elder  to  the  younger.  The  parties  accepting  the  whole 
must  pay  to  the  other  parties  interested  their  just  propor- 
tion of  the  true  value  thereof,  or  secure  the  same  to  their 
satisfaction,  or  in  case  of  the  minority  of  such  party,  then 
to  the  satisfaction  of  his  guardian;  and  the  true  value  of 
the  estate  must  be  ascertained  and  reported  by  the  commis- 
sioners. When  the  commissioners  appointed  to  make  par- 
tition are  of  the  opinion  that  the  real  estate  cannot  be 
divided  without  prejudice  or  inconvenience  to  the  owners, 
they  must  so  report  to  the  court,  and  recommend  that  the 
whole  be  assigned  as  herein  provided,  and  must  find  and 
report  the  true  value  of  such  real  estate.  On  filing  the 
report  of  the  commissioners,  and  on  making  or  securing 
the  payment  as  before  provided,  the  court,  if  it  appears 
just  and  proper,  must  confirm  the  report,  and  thereupon 
the  assignment  is  complete,  and  the  title  to  the  whole  of 
such  real  estate  vests  in  the  person  to  whom  the  same  is 
so  assigned.     En.  March  11,  1872.     Am'd.  1880,  103. 

Prob.  Act,  sec.  266.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448.     Am'd.   1861,  650;     1864,  371. 


8§  1681-1G83  PARTITION   AND   SETTLEMENT.  636 

§  1681.  Payments  for  equality  of  partition,  by  whom  and 
how.  When  any  tract  of  land  or  tenement  is  of  greater 
value  than  any  one's  share  in  the  estate  to  be  divided, 
and  cannot  be  divided  without  injury  to  the  same,  it  may 
be  set  off  by  the  commissioners  appointed  to  make  parti- 
tion to  any  of  the  parties  who  will  accept  it,  giving  prefer- 
ence as  prescribed  in  the  preceding  section.  The  party 
accepting  must  pay  or  secure  to  the  others  such  sums  as 
the  commissioners  shall  award  to  make  the  partition  equal 
and  the  commissioners  must  make  their  award  accord- 
ingly; but  such  partition  must  not  be  established  by  the 
court  until  the  sums  awarded  are  paid  to  the  parties  en- 
titled to  the  same,  or  secured  to  their  satisfaction.  En. 
March  11,  1872. 

Prob.  Act,  sec.  267.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1682.  Estate  may  be  sold.  When  it  appears  to  the 
court,  from  the  commissioners'  report,  that  it  cannot 
otherwise  be  fairly  divided  and  should  be  sold,  the  court 
may  order  the  sale  of  the  whole  or  any  part  ot  the  estate, 
real  or  personal,  by  the  executor  or  administrator,  or  by  a 
eommissioner  appointed  for  that  purpose  and  the  proceeds 
distributed.  The  sale  must  be  conducted,  reported,  and 
confirmed,  in  the  same  manner  and  under  the  same  re- 
(luirements  provided  in  article  four,  chapter  seven  of  this 
litle.     En.  March  11,  1872. 

Prob.  Act,  sec.  268.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  650. 

§  1683.  To  give  notice  to  all  persons  and  guardians  be- 
fore partition.  Duties  of  commissioners.  Before  any  parti- 
tion is  made  or  any  estate  divided,  as  provided  in  this 
chapter,  notice  must  be  given  to  all  persons  interested  in 
the  partition,  their  guardians,  agents,  or  attorneys,  by  the 
commissioners,  of  the  time  and  place  when  and  where  they 
shall  proceed  to  make  partition.  The  commissioners  may 
take  testimony,  order  surveys,  and  take  such  other  steps 
as  may  be  necessary  to  enable  them  to  form  a  judgment 
upon  the  matters  before  them.     Eru  March  11.  1872- 

GaL  E^n,  Cit,     l©?,  ». 

Prob.  Act,  sec.  270.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     AmM.  1861,  65L 


637  PARTITION    AND   SETTLEMENT.  §§  1684-1686 

§  1684.     To   make   report,  and   partition  to   be   recorded. 

The  commissioners  must  report  their  proceedings,  and  the 
partition  agreed  upon  by  them,  to  the  court,  in  writing,  and 
the  court  may,  for  sufficient  reasons,  set  aside  the  report 
and  commit  the  same  to  the  same  commissioners,  or  ap- 
point others;  and  when  such  report  is  finally  confirmed,  a 
certified  copy  of  the  judgment,  or  decree  of  partition  made 
thereon,  attested  by  the  clerk  under  the  seal  of  the  court, 
must  be  recorded  in  the  office  of  the  recorder  of  the  county 
where  the  lands  lie.    En.  March  11,  1872.     Am'd.  1880,  104. 

Prob.  Act,  sec.  271.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.    Am'd.  1861,  651. 

I  1685.  When  commissioners  to  make  partition  are  not 
necessary.  When  the  court  makes  a  judgment  or  decree 
assigning  the  residue  of  any  estate  to  one  or  more  persons 
entitled  to  the  same,  it  is  not  necessary  to  appoint  com- 
missioners to  make  partition  or  distribution  thereof,  unless 
the  parties  to  whom  the  assignment  is  decreed,  or  some  of 
them,  request  that  such  partition  be  ma-de.  En.  March  11, 
1872.     Am'd.  1880,  104. 

Prob.  Act,  sec.  272.  En.  April  22,  1850.  Rep,  1851,  489. 
En.  1851,   448. 


§  1686.  Advancements  made  to  heirs.  All  questions  as 
to  advancements  made,  or  alleged  to  have  been  made,  by 
the  decedent  to  his' heirs,  may  be  heard  and  determined  by 
the  court,  and  must  be  specified  in  the  decree  assigning 
and  distributing  the  estate;  and  the  final  judgment  or  de- 
cree of  the  court,  or  in  case  of  appeal,  of  the  supreme  court, 
is  binding  on  all  parties  interested  in  the  estate.  En. 
March  11,  1872.     Am'd.  1880,  104. 

Cal.  Rep.  Cit.     58,  515;   80,  496;   102,  9. 

Prob.  Act,  sec.  275.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  651. 


§§  1691,  1C92  PARTITION   AND   SKTTLEMENT.  ■» 


ARTICLE   IV. 

AGENTS    FOR    ABSENT    INTERESTED    PARTIES.     DISCHARGE    OF 
EXECUTOR   OR   ADMINISTRATOR. 

§  1691.  Court   may   appoint   agent   to   take   possession   for  absentees. 

§  1692.  Agent   to   give   bond,   and   his  compensation. 

§  1693.  Unclaimed    estate,    how    disposed    of. 

§  1694.  When   real  and  personal  property  of  absentee  to  be   sold. 

§  1695.  Liability  of  agent  on   his  bond. 

§  1696.  Certificate   to   claimant. 

§  1697.  Final    settlement,    decree,    and    discbarge. 

§  1698.  Discovery   of   property. 

§  1691.  Court  may  appoint  agent  to  take  possession  for 
absentees.  When  any  estate  is  assigned  or  distributed  by 
a  judgment  or  decree  of  the  court,  as  provided  in  this  chap- 
ter, to  any  person  residing  out  of,  and  having  no  agent  in 
this  state,  and  it  is  necessary  that  some  person  should  be 
authorized  to  take  possession  and  charge  of  the  same  for 
the  benefit  of  such,  absent  person,  the  court  may  appoint 
an  agent  for  that  purpose  and  authorize  him  to  talve  charge 
of  such  estate,  as  well  as  to  act  for  such  absent  person  in 
the  distribution;  provided,  that  if  such  estate  be  in  money 
when  so  assigned  or  distributed,  the  executor  or  adminis- 
trator of  such  estate  may  deposit  the  share  of  each  person, 
and  in  the  name  of  said  person,  as  far  as  known,  as  desig- 
nated in  said  assignment  or  decree  of  distribution,  with  the 
county  treasurer  of  the  county  in  which  said  estate  is  being 
probated,  and  shall  give  a  receipt  for  the  same,  and  be 
liable  upon  his  official  bond  therefor;  and  said  receipt 
shall  be  deemed  and  received  by  the  court  or  judge  thereof 
as  a  voucher  in  favor  of  said  executor  or  administrator, 
with  the  same  force  and  effect  as  if  executed  by  such 
assignee,  legatee,  or  distributee;  and  said  section  as 
amended  shall  be  applicable  to  any  and  all  estates  now 
pending  in  which  a  decree  of  final  discharge  has  not  been 
granted.     En.  March  11,  1872.     Am'd,  1895,  75. 

•    Cal.  Rep.  Cit.     58,   515. 

Prob.  Act,  sec.  274.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

§  1692.     Agent  to  give  bond,  and  his  compensation.     The 

agent  must  execute  a  bond  to  the  state  of  California,  to  be 
approved  by  the  court,  or  a  judge  thereof,  conditioned  that 


839  PARTITION   AND    SETTLEMENT.  §§  1693,   1U94 

he  shall  faithfully  manage  and  account  for  the  estate.  The 
court  appointing  such  agent  may  allow  a  reasonable  sum 
out  of  the  profits  of  the  estate  for  his  services  and  ex- 
penses.    En.  March    11,    1872.     Am'd.    1880,   104. 

Cal.    Rep.    Cit.     117,    646. 

Prob.  Act,  sec.  275.  En.  April  22,  1850.  Rep.  1851,  489. 
En.    1851,   448. 

§  1693.  Unclaimed  estate,  how  disposed  of.  When  per- 
sonal property  remains  in  the  hands  of  the  agent  unclaimed 
for  a  year,  and  it  appears  to  the  court  that  it  is  for  the 
benefit  of  those  interested,  it  shall  be  cold  under  the  order 
of  the  court,  and  the  proceeds,  after  deducting  the  expenses 
of  the  sale  allowed  by  the  court,  must  be  paid  into  the  state 
treasury.  When  the  payment  is  made,  the  agent  must  take 
from  the  treasury  duplicate  receipts,  one  of  which  he  must 
file  in  the  office  of  the  controller  and  the  other  in  the  court 
En.  March  11,  1872.     Am'd.  1880,  104. 

Cal.  Rep.  Cit.     76,  652. 

Prob.  Act,  sec.  276.  En.  April  22.  1850.  Rep.  1851,  489. 
En.   1851,  448. 

Unclaimed    property:   Ante,    sees.    1269-1272. 

§  1694.  When  real  and  personal  property  of  absentee  to 
be  sold.  The  agent  must  render  the  court  appointing  him, 
annually,  an  account   showing: 

1.  The  value  and  character  of  the  property  received  by 
him,  what  portion  thereof  is  still  on  hand,  what  sold,  and 
for  what. 

2.  The  income  derived  therefrom. 

3.  The  taxes  and  assessments  imposed  thereon,  for  what, 
and  whether  paid  or  unpaid. 

4.  Expenses  incurred  in  the  care,  protection,  and  manage- 
ment thereof,  and  whether  paid  or  unpaid.  When  filed, 
the  court  may  examine  witnesses  and  take  proofs  in  regard 
to  the  account;  and  if  satisfied  from  such  accounts  and 
proofs  that  it  will  be  for  the  benefit  and  advantage  of  the 
persons  interested  therein,  the  court  may,  by  order,  direct 
a  sale  to  be  made  of  the  whole  or  such  parts  of  the  real 
or  personal  property  as  shall  appear  to  be  proper,  and  the 
purchase  money  to  be  deposited  in  the  state  treasury.  Eru 
March  11,  1872.     Am'd.   1880,  105. 


§§  16S5-1G98  PARTITION  AND   SETTLEMENT.  MO 

§  1695.  Liability  of  agent  on  his  bond.  The  agent  is 
liable  on  bis  bond  for  the  care  and  preservation  of  the 
estate  while  in  his  hands,  and  for  the  payment  of  the 
proceeds  of  the  sale  as  required  in  the  preceding  sections, 
and  may  be  sued  thereon  by  any  person  interested.  En. 
March   11,   1872. 

Prob.  Act,  sec.  277.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

5  1696.  Certificate  to  claimant.  "UTien  any  person  ap- 
pears and  claims  the  money  paid  into  the  treasury,  the 
court  making  the  distribution  must  inquire  into  such  claim, 
and  being  first  satisfied  of  his  right  thereto,  must  grant 
him  a  certificate  to  that  effect,  under  Its  seal;  and  upon 
the  presentation  of  the  certificate  to  him,  the  controller 
must  draw  his  warrant  on  the  treasurer  for  the  amount. 
En.  March  11,  1872.     Am'd.  1880,  105. 

Prob.  Act,  sec.  278.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1697.  Final  settlement,  decree,  and  discharge.  "WTien 
the  estate  has  been  fully  administered,  and  it  is  shown  by 
the  executor  or  administrator,  by  the  production  of  satis- 
factory vouchers,  that  he  has  paid  all  sums  of  money  due 
from  him,  and  delivered  up,  under  the  order  of  the  court, 
all  the  property  of  the  estate  to  the  parties  entitled,  and, 
performed  all  the  acts  lawfully  required  of  him,  the  court 
must  make  a  judgment  or  decree  discharging  him  from  all 
liability  to  be  incurred  thereafter.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  54,  305;  60,  259;  63,  475;  63,  476;  93,  463; 
112,  294;  129,  305;  134,  29;  143,  228;  143,  234;  145,  349. 

Prob.  Act,  sec.  279.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1861,  651. 

Cal.  Rep.  Cit.  36,  654;  86,  655;  51,  151. 

§  1698.  Discovery  of  property.  The  final  settlement  of 
an  estate,  as  in  this  chapter  provided,  shall  not  prevent 
a  subsequent  issue  of  letters  testamentary,  or  of  adminis- 
ration,  or  of  administration  with  the  will  annexed,  if  other 
property  of  the  estate  be  discovered,  or  if  it  become  neces- 
sary or  proper  for  any  cause  that  letters  should  be  again 
issued.  En.  March  11,  1872.  Am'd.  1873-4,  373. 
Cal.   Rep.  Cit.     57,    388;    136,    370. 

Prob.  Act,  sec.  280.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.   1861,   651;    1872,   85. 


S41  PARTITION    AND    SETTLEMENT.  g  1099 


ARTICLE  V. 

[New  article  added  March  19,  1889;   Stats.  1889,  p.  337.     In 
effect  immediately.] 

ACCOUNTS    OF    TRUSTEES— DISTRIBUTION. 

§  1699.     Superior   court   not    to   lose   jurisdiction   by   final    distribution. 

§  1700.     Compensation   of   trustees. 

I  1701.     Appeal   from   decree   settling   account. 

§  1702.    Trustee     may     decline.     Resignation     of     executor.    Appointment 

by   court. 

§  1703.     Jurisdiction. 

§  1703Vi.  Distribution   to   treasurer. 

§  1699.  Superior  court  not  to  lose  Jurisdiction  by  final 
distribution.  Where  any  trust  has  been  created  by  or 
under  any  will  to  continue  after  distribution,  the  superior 
court  shall  not  lose  jurisdiction  of  the  estate  by  final  dis- 
tribution, taut  shall  retain  jurisdiction  thereof  for  the 
purpose  of  the  settlement  of  accounts  under  the  trusts. 
And  any  trustee  created  by  any  will,  or  appointed  to  ex- 
ecute any  trust  created  by  any  will,  may,  from  time  to 
time,  pending  the  execution  of  his  trust,  or  may,  at  the 
termination  thereof,  render  and  pray  for  the  settlement 
of  his  accounts  as  such  trustee,  before  the  superior  court 
in  which  the  will  was  probated,  and  in  the  manner  pro- 
vided for  the  settlement  of  the  accounts  of  executors  and 
administrators.  The  trustee,  or,  in  the  case  of  his  death, 
his  legal  representatives,  shall,  for  that  purpose,  present 
to  the  court  his  verified  petition,  setting  forth  his  ac- 
counts in  detail,  with  a  report  showing  condition  of  trust 
estate,  together  with  a  verified  statement  of  said  trustee, 
giving  the  names  and  postofflce  addresses,  if  known,  of 
the  cestuis  que  trust,  and,  upon  the  filing  thereof,  the 
court,  or  judge,  shall  fix  a  day  for  the  hearing.  The  clerk 
must  thereupon  give  notice  thereof  of  not  less  than  ten 
days,  by  causing  notices  to  be  posted  in  at  least  three 
public  places  in  the  county,  setting  forth  the  name  of  the 
trust  estate,  the  trustee,  and  the  day  appointed  for  the 
settlement  of  the  account.  The  court,  or  a  judge  thereof, 
may  order  such  further  notice  to  be  given  as  may  be 
proper.  Such  trustee  may,  in  the  discretion  of  the  court, 
upon   application  of   any  beneficiary   of  the   tmst,  or  the 

Code  Civil  Proc— 41. 


§§  1700-1702  PARTITION   AND   SETTLEMENT.  MJ 

guardian  of  such  beneficiary,  be  ordered  to  appear  and 
render  his  account,  after  being  cited  by  service  of  citation, 
as  provided  for  the  service  of  summons  in  civil  cases,  and 
such  application  shall  not  be  denied  where  no  account  has 
been  rendered  to  the  court  within  six  months  prior  to 
such  application.  Upon  the  filing  of  the  account  so  or- 
dered, the  same  proceedings  for  the  hearing  and  settle- 
ment thereof  shall  be  had  as  hereinabove  provided.  En. 
Stats.  1889,  337.     Am'd.  1895,  64;   1900-01,  47. 

Cal.  Rep.  Cit.     107,  595;   128,  684;   1S3,  495:   145,  340;  145, 
347;   145,  350. 

§  1700.  Compensation  of  trustees.  On  all  such  account- 
ings the  court  shall  allow  the  trustee  or  trustees  the 
proper  expenses  and  such  compensation  for  services  as  the 
court  may  adjudge  to  be  just  and  reasonable,  and  shall 
apportion  such  compensation  among  the  trustees  accord- 
ing to  the  services  rendered  by  them  respectively,  and 
may  in  its  discretion  fix  a  yearly  compensation  for  the 
trustee  or  trustees  to  continue  as  long  as  the  court  may 
judge  proper.     En.  Stats.  1889,  338. 

§  1701.     Appeal    from    decree   settling    account.     From   a 

decree  settling  such  account  appeal  may  be  tal<en  in  the 
manner  provided  for  an  appeal  from  a  decree  settling 
the  account  of  an  executor  or  administrator.  The  decree 
of  the  superior  court,  if  affirmed  on  appeal  or  becoming 
final  without  appeal,  shall  be  conclusive.  En.  Stats.  1889, 
838. 

§  1702.  Trustee  may  decline.  R'isignation  of  executor. 
Appointment  by  court.  Any  person  named  or  designated 
as  a  trustee  in  any  will  which  has  been  or  shall  hereafter 
be  admitted  to  probate  in  this  state  may,  at  any  time 
before  final  distribution,  decline  to  act  as  such  trustee, 
and  an  order  of  court  shall  thereupon  be  made  accepting 
such  resignation;  but  the  declination  ol  any  such  person 
who  has  qualified  as  executor  shall  not  be  accepted  by 
the  court,  unless  the  same  shall  be  in  writing  and  filed 
In  the  matter  of  the  estate  in  the  court  in  which  the 
administration  is  pending,  and  such  notice  shall  be  given 
thereof  as  is  required  upon  a  petition  praying  for  letters 
of  administration.  The  court  in  which  the  administration 
is  pending  shall  have  power  at  any  time  before  final  dis- 
tribution to  appoint  some  fit  and  proper  person  to  fill  any 


643  PARTITION    AND   SETTLEMENT.  §§  1703,  ITOoVi 

vacancy  in  the  office  of  trustee  under  the  will,  whether 
resulting  from  such  declination,  removal,  or  otherwise; 
provided,  it  shall  be  required  by  law  or  necessary  to  carry 
out  the  trust  created  by  the  will,  that  such  vacancy  shall 
be  filled;  and  every  person  so  appointed  shall,  before  act- 
ing as  trustee,  give  a  bond  such  as  is  required  by  section 
one  thousand  three  hundred  and  eighty-eight  of  this  code, 
of  a  person  to  whom  letters  of  administration  are  directed 
to  issue.  Such  appointment  may  be  made  by  the  probate 
judge  upon  the  written  application  of  any  person  in- 
terested in  the  trust  filed  in  the  probate  proceedings,  and 
shall  only  be  made  after  notice  to  all  parties  interested 
in  the  trust,  given  in  the  same  manner  as  notice  is  re- 
quired to  be  given  of  the  hearing  upon  the  petition  for  the 
probate  of  a  will.  In  each  of  the  preceding  cases  the  court 
may  order  such  further  notice  as  shall  seem  necessary. 
In  accepting  a  declination  under  the  provisions  of  this 
section,  the  court  may  make  and  enforce  any  order  which 
may  be  necessary  for  the  preservation  of  the  estate. 
This  section  shall  be  applicable  to  any  and  all  estates  now 
pending  in  which  a  final  distribution  and  discharge  haa 
not  been  granted.     En.  Stats.  1891,  15.     Am'd.  1899,  104. 

Cal.  Rep.  Cit.     135,  368. 

§  1703.  Jurisdiction.  The  provisions  of  the  next  preced- 
ing section  shall  apply  in  all  cases  where  a  final  decree  of 
distribution  has  not  been  made;  but  the  jurisdiction  given 
by  said  section  shall  not  exclude,  in  cases  to  which  it  ai)- 
plies  the  jurisdiction  now  possessed  by  the  courts  o£  this 
state.     En.  Stats.  1891,  16. 

Cal.  Rep.  Cit.     107,  595;  133,  495. 

§  17031/^.  Distribution  to  treasurer.  When  any  estate 
is  distributed  by  the  judgment  or  decree  of  the  court  or  a 
judge  thereof,  as  provided  in  this  chapter,  to  a  distributee 
who  cannot  be  found  and  his  or  her  place  of  residence 
is  unknown,  or  to  a  minor  or  incompetent  person,  who  has 
no  lawful  guardian  to  receive  the  same,  or  person  author- 
ized to  receipt  therefor,  the  portion  of  said  estate  consist- 
ing of  money  shall  be  paid  to  and  deposited  with  the 
county  treasurer  of  the  county  in  which  the  estate  is  be- 
ing probated,  who  shall  give  a  receipt  for  the  same,  and 
shall  be  liable  on  his  official  bond  therefor;  and  said  re- 
ceipt shall  be  deemed  and  received  by  the  court  or  judge 
thereof  as  a  voucher  in  favor  of  said  executor  or  adminis- 
trator, with  the  same  force  and  effect  as  if  executed  by  the 


I  1704  ORDERS,   DECREES,   ETC.  614 

distributee  thereof.  And  this  section  shall  be  applicable 
to  any  an-d  all  estates  now  pending  in  which  a  final  de- 
cree of  discharge  has  not  been  granted.  Said  moneys  so 
paid  into  the  county  treasury,  shall  be  paid  out  upon  peti- 
tion to,  and  the  order  of  the  superior  court  or  judge  there- 
of to  the  person  entitled  to  receive  the  same.  En.  Stats. 
1897,  38.     Am'd.  1905,  6. 

The  act  adding  this  article  to  the  code  contained  a 
provision  that  it  should  "apply  to  all  estates  of  decedents, 
where  a  final  decree  of  distribution  has  not  heretofore  been 
made."    En.  Stats.   1889,  338. 


CHAPTER  XII. 

OF  ORDERS,    DECREES,    PROCESS,    MINUTES,    RECORDS,    TRIALS, 
AND    APPEALS. 

§  1704.     Orders   and   decrees   to   be   entered   in   minutes. 

§  1705.     How  often   publication  to  be   made. 

I  1706.     Recorded    decree   or   order    to   impart   notice   from   date   of   filing. 

§  1707.     Citation,    how   directed   and   what   to   contain. 

§  1708.     Citation,    how    issued. 

§  1709.     Citation,    how   served. 

§  1710.     Personal    notice    given    by    citation. 

§  1711.     Citation  to  be  served  five  days  before   return. 

§  1712.  One  description  of  real  estate  sought  to  be  sold  being  pTil>- 
lished,   is  sufficient  for  all  purposes. 

§  1713.     Rules   of   practice   generally. 

§  1714.     New   trials    and   appeals. 

§  1715.     Within   what   time   appeal   must   be   taken. 

§  1716.     Issues   joined   in    probate   court,    how   tried   and   disposed   of. 

§  1717.  Court  to  try  case  when  no  jury  is  demanded.  How  and  what 
issues   to  be   tried. 

§  1718.  Court  to  appoint  attorney  for  minor  or  absent  heirs,  devisees, 
legatees,  or  creditors,  when,  and  what  compensation  he  is 
to    receive.     (Repealed.) 

§  1719.    Decrees,   what  to  be  recorded. 

§  1720.     Costs,   by  whom  paid  in  certain  cases. 

§  1721.     Executor,    etc.,    to   be   removed   when   committed   for    contempt. 

§  1722.     Service  upon   guardian. 

§  1723.  Disposition  of  life  estates  or  homesteads  or  community  prop- 
erty  in  certain  cases. 

§  1704.  Orders  and  decrees  to  be  entered  in  minutes. 
Or'iers  and  decrees  made  by  the  court,  or  a  judge  thereof, 
In  probate  proceedings,  need  not  recite  the  existence  of 
facts,  or  the  performance  of  acts,  upon  which  the  juris- 
diction of  the  court  or  judge  may  depend,  but  it  shall  only 


e45  ORDERS,    DECREES.    ETC.  §§  1705-1705 

be  necessary  that  they  contain  the  matters  ordered  or  ad- 
judged, except  as  otherwise  provided  in  this  title.  All 
orders  and  decrees  of  the  court  or  judge  must  be  entered 
at  length  in  the  minute-book  of  the  court.  En.  March  11, 
1872.     Am'd.   1873-4,   374;     1880.   105. 

Cal.  Rep.  Cit.  72,  578;  99,  515;  110,  227;  119,  28;  122, 
529;     139,  696;     143,  411. 

Prob.  Act,  sec.  287.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  652. 

Cal.  Rep.  Cit.     51,  150. 

§  1705.  How  often  publication  to  be  made.  WTien  any 
publication  is  ordered,  such  publication  must  be  made 
daily,  or  otherwise  as  often  during  the  prescribed  period 
as  the  paper  is  regularly  issued,  unless  otherwise  provided 
in  this  title.  The  court,  or  a  judge  thereof,  may,  however, 
order  a  less  number  of  publications  during  the  period.  En. 
March  11,  1872.     Am'd.  1880,  105. 

Cal.  Rep.  Cit.  73,  559;  84,  446;  84,  447;  120,  431;  121, 
524. 

Affidavit  of  publication:   Post,  sees.  2010,  2011. 

§  1706.  Recorded  decree  or  order  to  impart  notice 
from  date  of  filing.  When  it  is  provided  in  this  title  that 
any  order  or  decree  of  the  court,  or  a  judge  thereof,  or  a 
copy  thereof  must  be  recorded  in  the  ofTice  of  the  county 
recorder,  from  the  time  of  filing  the  same  for  record,  no- 
tice is  imparted  to  all  persons  of  the  contents  thereof.  En., 
March  11,  1872.     Am'd.   1880,  105. 

§  1707.     Citation,    how    directed    and    what    to    contain. 

Citations  must  be  directed  to  the  person  to  be  cited, 
signed  by  the  clerk  and  issued  under  the  seal  of  the  court, 
and  must  contain: 

1.  The  title  of  the  proceeding; 

2.  A  brief  statement  of  the  nature  of  the  proceeding; 

3.  A  direction  that  the  person  cited  appear  at  a  time  and 
place  specified.     En.  March  11,  1872. 

Cal.   Rep.   Cit.     68,   86;    72,  24;     116,  451. 

§  1708.  Citation,  how  issued.  The  citation  may  be  Is- 
sued by  the  clerk  upon  the  application  of  any  party  with- 
out an  order  of  the  judge,  except  in  cases  in  which  such 
order  is  by  the  provisions  of  this  title  expressly  required. 
En.  March  11,  1872. 

Cal.  Rep.  Cit     68,  86;    72,  24;    116,  4" 


§§  1709-1713  OFDERS,    DECREES,    ETC.  6411 

§  1709.  Citation,  how  served.  The  citation  must  'be 
served  in  the  same  manner  as  a  summons  in  a  civil  action. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.  C7,  19;  C8,  86;  C8,  87;  72.  24;  109,  254;  116, 
451;    143,   21. 

Prob.  Act,  sec.  289.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  653. 

Cal.  Rep.  Cit.     68,  89. 

Service  of  citation — time  for:  Post,  sec.  1711;  of  sum- 
mons:   Ante,  sec.  410. 

§  1710.  Personal  notice  given  by  citation.  When  per- 
sonal notice  is  required,  and  no  mode  of  giving  it  is  pre- 
scribed in  this  title,  it  must  be  given  by  citation.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     67,  19;    68,  86;    68,  87. 

Prob.  Act,  sec.  288.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  652. 

Cal.  Rep.  Cit.     68,  89. 

§  1711.     Citation   to   be   served   five   days   before    return. 

When  no  other  time  is  specially  prescribed  in  this  title, 
citations  must  be  served  at  least  five  days  before  the  re- 
turn day  thereof.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     116,  451. 

Prob.  Act,  sec.  290.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  653. 

§  1712.  One  description  of  real  estate  sought  to  be  sold 
being  published,  is  sufficient  for  all  purposes.  When  a 
complete  description  of  the  real  property  of  an  estate 
sought  to  be  sold  has  been  given  and  published  in  a  news- 
paper, as  required  in  the  order  to  show  cause  why  the  sale 
should  not  be  made,  such  description  need  not  be  published 
in  any  subsequent  notice  of  sale  or  notice  of  a  petition 
for  the  confirmation  thereof.  It  is  sufficient  to  refer  to 
the  description  contained  in  the  publication  of  the  first 
notice,  as  being  proved  and  on  file  in  the  court.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     139,  20. 

§  1713.  Rules  of  practice  generally.  Except  as  other- 
wise provided  in  this  title,  the  provisions  of  part  two  of 
this  code  are  applicable  to  and  constitute  the  rules  of  prac- 


647  ORDERS.    DECREES,    ETC.  §§  1714-1716 

tice  in  the  proceedings  mentioned  in  this  title.     En.  March 
11,  1872. 

Cal.    Rep.     Cit.     55,    576;      56,   325;     61,   163;     63,   37;     74, 
205;     80,  145;     93,  623;     108,  94;     116,   450;     133,  585; 
139    591'     145    467. 
Prob.   Act,  sec.   293.     En.  April  22,  1850.     Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1861,  653. 
Cal.  Rep.  Cit.     46,  247. 
Part  two:    Ante,  sees.  307  et  seq. 

§  1714.  New  trials  and  appeals.  The  provisions  of 
part  two  of  this  code,  relative  to  new  trials  and  appeals — 
except  in  so  far  as  they  are  inconsistent  with  the  provis- 
ions of  this  title — apply  to  the  proceedings  mentioned  in 
this  title.     En.  March  11.  1872. 

Cal.  Rep.  Cit..  53,  631;  55,  576;  68,  132;  74,  205;  83, 
619;     88,  315;     93,   618;     133,   585. 

New  trials:  Ante,  sees.  656  et  seq.;  appeals,  Ante,  sees 
936  et  seq. 

§  1715.     Within   what  time  appeal   must  be  taken.     The 
appeal  must  be  taken  within  sixty  days   after   the  order, 
decree,  or  judgment  is  entered.     En.  March  11,  1872. 
Cal.  Rep.  Cit.     54.228;    55,576;    64,379;    64,428;    68,132; 
74,  205;     75,  524;     83,  G19;     93,  621;     95.  672;     96,   114; 
98.   553;     109,   646;     119.   28;     122,   529;     133,  322;     133, 
323;     134,  122;     138,  197;    141,  73;    147,  194. 
Appeals  from   superior  courts — in  probate  matters:    Sec. 
963,  subd.  3. 

§  1716.  Issues  joined  in  probate  court,  how  tried  and  dis- 
posed of.  All  issues  of  fact  joined  in  probate  proceedings 
must  be  tried  in  conformity  with  the  requirements  of 
article  two,  chapter  two,  of  this  title,  and  in  all  such  pro- 
ceedings the  party  affirming  is  plaintiff,  and  the  one  deny- 
ing or  avoiding  is  defendant.  Judgments  therein,  on  the 
issue  joined,  as  well  as  for  costs,  may  be  entered  and 
enforced  by  execution  or  otherwise  by  the  court,  as  in 
civil  actions.     En.  March  11,  1872.     Am'd.  1880,  106. 

Cal.  Rep.  Cit.  55,  576;  56,  325;  68,  132;  72,  339;  74, 
205;     74,  207;    116,  643;    133,  585;     140,  439;     147,  128. 

Prob.  Act,  sec.  294.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.  Am'd.  1855,  300;  1861,  653;  1868,  629. 

Cal.  Rep.  Cit.  35,  510;  35,  511. 

Trial  of  issues:   Post,  sec.  1717. 


j§  1717-1720  ORDERS.    DKCRKKS,     KTC  648 

§  1717.  Court  to  try  case  when  no  jury  is  demanded. 
How  and  what  issues  to  be  tried.  If  no  jury  is  demanded, 
the  court  must  try  the  issues  joined.  If  on  written  de- 
mand a  jury  is  called  by  either  party,  and  the  issues  are 
not  sufficiently  made  up  by  the  written  pleadings  on  file, 
the  court,  on  due  notice  to  the  opposite  party,  must  settle 
and  frame  the  issues  to  be  tried,  and  submit  the  same,  to- 
gether with  the  evidence  of  each  party,  to  the  jury,  on 
which  they  must  render  a  verdict.  Either  may  move  for 
a  new  trial,  upon  the  same  grounds  and  errors,  and  in  like 
manner,  as  provided  in  this  code  for  civil  actions.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.  68,  132;  72,  339;  74,  207;  96,  114;  133, 
585. 

New  trials:   Ante,  sec.  1714. 

§  1718.  Court  to  appoint  attorney  for  minor  or  absent 
heirs,  devisees,  legatees,  or  creditors,  when,  and  what 
compensation  he  is  to  receive.  En.  March  11,  1872.  Am'd. 
1873-4,  374;     1880,   106.     Rep.   1903,   243. 

Cal.  Rep.  Cit.     75,  599;    93,  629;    125,  258;    134,  6. 

§  1719.  Decrees,  what  to  be  recorded.  When  a  judgment 
or  decree  is  made,  setting  apart  a  homestead,  confirming 
a  sale,  making  distribution  of  real  property,  or  deter- 
mining any  other  matter  affecting  the  title  to  real  prop- 
erty, a  certified  copy  of  the  same  must  be  recorded  in  the 
office  of  the  recorder  of  the  county  in  which  the  property 
is  situated.     En.  March  11,  1872.     Am'd.  1873-4,  375. 

Prob.  Act,  sec.  296.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448.     Am'd.  1855,  301;    18G1,  654. 

§   1720.     Costs,  by  whom  paid  in  certain  cases.     When  it 

is  not  otherwise  prescribed  in  this  title,  the  superior  court, 
or  the  supreme  court  on  appeal,  may,  in  its  discretion, 
order  costs  to  be  paid  by  any  party  to  the  proceedings, 
or  out  of  the  assets  of  the  estate,  as  justice  may  require. 
Execution  for  the  costs  may  issue  out  of  the  superior 
court.     En.  March  11,  1872.     Am'd.  1880,  106. 

Cal  Rep.  Cit.  47,  452;  93,  571;  112,  453;  120,  452;  120, 
453;    120,  454;   141,  426. 

Prob.  Act.  sec.  302.  En.  April  22,  1850.  Rep.  1851,  483 
En.  1851,  448.     Am'd.  1855,  302. 

Cal.  Rep.  Cit.     36,  280. 


649  ORDERS,    DECREES,    ETC.  §§   1721-1723 

Costs  against  executor — or  adrainistrator:  Ante,  see. 
1509. 

§  1721.  Executor,  etc.,  to  be  removed  when  committed 
for  contempt.  Whenever  an  executor,  administrator,  or 
guardian  is  committed  for  contempt  in  disobeying  any 
lawful  order  of  the  court,  or  a  judge  thereof,  and  has  re- 
mained m  custody  for  thirty  days  without  obeying  such 
order,  or  purging  himself  otherwise  of  the  contempt,  the 
court  may,  by  order  reciting  the  facts,  and  without  further 
showing  or  notice,  revoke  his  letters  and  appoint  some 
other  person  entitled  thereto  executor,  administrator,  or 
guardian  in  his  stead.  En.  March  11,  1872.  Am'd.  1880, 
106. 


§  1722.  Service  upon  guardian.  Whenever  an  infant, 
insane,  or  incompetent  person  has  a  guardian  of  his  es- 
tate residing  in  this  state,  personal  service  upon  the 
guardian  of  any  process,  notice,  or  order  of  the  court  con- 
cerning the  estate  of  a  deceased  person  in  which  the  ward 
is  interested,  is  equivalent  to  service  upon  the  ward,  and  it 
is  the  duty  of  the  guardian  to  attend  to  the  interests  of 
the  ward  in  the  matter.  Such  ^lardian  may  also  appear 
for  his  ward  and  waive  any  .process,  notice,  or  order  to 
show  cause  which  an  adult  or  a  person  of  sound  mind 
might  do.     En.  Stats.  1873-4,  375.     Am'd.  1880,  107. 

§  1723.  Disposition  of  life  estates  or  liomesteads,  or  com- 
munity   property,    on    owner's    death    in    certain    cases.     If 

any  person  has  died  or  shall  hereafter  die  who  at  the  time 
of  his  death  was  the  owner  of  a  life  estate  which  termin- 
ates by  reason  of  the  death  of  such  person,  or  if  such  per- 
son at  the  time  of  his  death  was  one  of  the  spouses  own- 
ing lands  as  a  homestead,  which  lands  by  reason  of  the 
death  of  such  person,  vest  in  the  surviving  spouse;  or  if 
such  person  was  a  married  woman  who  at  the  time  of  her 
death  v/as  the  owner  of  community  property  which  passed 
upon  her  death  to  the  surviving  husband;  any  person  In- 
terested in  the  property,  or  in  the  title  thereto,  in  which 
such  estates  or  interests  were  held,  may  file  in  the  superior 
court  of  the  county  in  v/hich  the  property  is  situated,  his 
verified  petition  setting  forth  such  facts,  and  thereupon 
and  after  such  notice  by  publication  or  otherwise,  as  the 
court  may  order,  the  court  shall  hear  such  petition  and  the 
evidence  offered  in  support  thereof,  and  if  upon  ssch  hear- 


§  1726  PUBLIC   ADMINISTRATOR  65C 

ing  it  shall  appear  that  such  life  estate  of  such  deceased 
person  absolutely  terminated  by  reason  of  his  death,  or 
such  homestead  or  community,  property  vested  in  the 
survivor  of  such  marriage,  the  court  shall  make  a  decree 
to  that  effect,  and  thereupon  a  certified  copy  of  such  de- 
cree may  be  recorded  in  the  office  of  the  county  recorder, 
and  thereafter  shall  have  the  same  effect  as  a  final  decree 
of  distribution  so  recorded.  En.  Stats.  1881,  35.  Am'd. 
1897,  62;   1905,  146. 

Cal.  Rep.  Cit.     102,  538;   102,  541;  131,  450;  136,  387;  142, 
120. 


CHAPTER  XIII, 

OF    PUBLIC    ADMINISTRATOR. 

§  1726.    What   estates    to  be  administered  by  public   administrator. 

§  1727.  Public  administrator  to  obtain  letters,  when  and  how.  Hia 
bond  and  oath. 

§  172S.     Duty   of  persons  in   whose  house  any   stranger  dies.- 

§  1729.  Must  return  inventory  and  administer  estates  according  to  this 
title. 

§  1730.  When  another  person  is  appointed  administrator  or  executor, 
public   administrator   to   deliver  up   the  estate. 

§  1731.     Civil    officers    to    give    notice    of    waste    to    public    administrator. 

§  1732.     Suits   for   property    of  decedents. 

§  1733.     Order  to   examine   party   charged    with    embezzling    estate. 

§  173*.     Punishment    for   refusing   to   attend. 

§  1735.    Order    on    public    administrator    to    account. 

§  1736.  Every  six  months  to  make  and  publish  return  of  condition  ot 
estate. 

§  1737.     Moneys    pai'd    to    ceunty    treasurer.     Investments.     Escheat. 

§  1738.  Not  to  be  interested  in  the  payments  for  or  on  account  of  es- 
tates   in    his    hands. 

§  1739.  When  to  settle  with  county  clerli,  and  how  unclaimed  estate 
disposed   of. 

§  1740.  Procee'dings  against  public  administrator  for  failure  to  pay 
over   money   as   ordered. 

§  1741.     Fees   of   officers,    when   and   by   whom   paid. 

§  1742.     Public    administrator    to    administer    oaths. 

§  1743.     Preceding   chapters   applicable    to    public    administrator. 

§  1744.     To   file   reports.     Penalty   for   failure.     Duty   of   district   attorney. 

§  1726.  What  estates  to  be  administered  by  public  ad- 
ministrator. Every  public  administrator,  duly  elected,  com- 
missioned, and  qualified,  must  take  charge  of  the  estates 
of  persons   dying  within  his  couniy  as  follows: 

1.  Of  the  estate  of  decedents  for  which  no  administra- 
tors are  appointed,  and  which,  in  consequence  thereof,  are 
being  wasted,  uncared  -for,  or  lost; 


«51  PUBLIC    ADMINISTRATOR.  §§  1727,  1728 

2.  Of  the  estate  of  decedents  who  have  no  known  heirs; 

3.  Of  the  estates  ordered  into  his  hands  by  the  court; 
and 

4.  Of  the  estates  upon  which  letters  of  administration 
have  been  issued  to  him  by  the  court.  En.  March  11,  1872. 
Am'd.  1880,  107. 

Gal.   Rep.   Cit.     76,   297;    7G,  298;    101,  613;    127,  661;    127, 
662;  143,  202;  146,  592;  146,  593;  146,  594;  146,  597. 

Public  administrator. — B.y  act  approved  March  30,  1872, 
Stats.  1871-2,  which  took  effect  immediately,  if  the  public 
administrator  of  any  county  of  this  state  fails  to  qualify, 
or  in  person  fails  to  perform  the  duties  of  his  office,  the 
coroner  of  such  county  shall  be  ex-officio  public  adminis- 
trator; and  in  case  both  public  administrator  and  coroner 
fail  to  qualify,  or  perform  the  duties  appertaining  thereto, 
the  supervisors  shall  appoint  a  suitable  person  to  be  public 
administrator;  and  all  laws  applicable  to  the  qualification, 
powers,  duties,  and  compensation  of  public  administrator 
shall  apply  to  the  coroner  or  appointee  of  the  supervisors 
as  aforesaid.  This  act  was  repealed  by  the  County  Gov- 
ernment Act,  1897,  490,  sees.  142-147,  prescribing  the  duties 
of  coroner. 

Fees:   Ante,  sec.  1618. 


§  1727.  Public  administrator  to  obtain  letters,  when  and 
how.  His  bond  and  oath.  Whenever  a  public  administra- 
tor takes  charge  of  an  estate,  which  he  is  entitled  to  ad- 
minister without  letters  of  administration  bein'g  issued, 
or  under  order  of  the  court,  he  must,  with  all  convenient 
dispatch,  procure  letters  of  administration  thereon,  in  like 
manner  and  on  like  proceedings  as  letters  of  administra- 
tion are  issued  to  other  persons.  His  official  bond  and 
oath  are  in  lieu  of  the  administrator's  bond  and  oath;  but 
when  real  estate  is  ordered  to  be  sold,  another  bond  may 
be  required  by  the  court.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     127,  661;   127,  662;    146,  593;    146,  725. 

Delivering  estate  to  another  appointed:   Post,  sees.  1730, 
1735. 
Bond  on  sale  of  real  estate:  Ante,  sec.  1389. 


§  1728.  Duty  of  persons  in  whose  house  any  stranger 
dies.  Whenever  a  stranger,  or  person  without  known  heirs, 
dies   intestate   in   the   house   or  premises   of   another,   the 


§§  1729-1731  PUBLIC   ADMINISTRATOR.  BM 

possessor  of  such  premises,  or  any  one  knowing  the  facts, 
must  give  immediate  notice  thereof  to  the  public  adminis- 
trator of  the  county;  and  in  default  of  so  doing,  he  is 
liable  for  any  da.mage  that  may  be  sustained  thereby,  to 
be  recoYered  by  the  public  administrator,  or  any  party  in- 
terested.    En.  March  11,  1872. 

Cal.   Rep.  Cit.     143,  202. 

Prob.  Act,  sec.  304.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     7,  231. 

§  1729.  Must  return  inventory  and  administer  estates 
according  to  this  title.  The  public  administrator  must 
make  and  return  a  perfect  inventory  of  all  estates  taken 
into  his  possession,  administer  and  account  for  the  same 
according  to  the  provisions  of  this  title,  subject  to  the 
control  and  directions  of  the  court.  En.  March  11,  1872, 
Am'd.   1880,  107. 

Cal.  Rep.  Cit.     143,  202. 

Prob.  Act,  sec.  305.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,   448. 

CaJ.  Rep.  Cit.     7,  231. 

§  1730.  When  another  person  is  appointed  administrator 
or  executor,  public  administrator  to  deliver  up  the  estate. 

If,  at  any  time,  letters  testamentary  or  of  administration 
are  regularly  granted  to  any  other  person  on  an  estate  of 
which  the  public  administrator  has  charge,  he  must,  under 
the  order  of  the  court,  account  for,  pay,  and  deliver  to 
the  executor  or  administrator  thus  appointed,  all  the 
money,  property,  papers,  and  estate  of  every  kind  in  his 
possession  or  under  his  control.  En.  March  11,  1872. 
Am'd.  1880,  107. 

Cal.   Rep.   Cit.     101,  613. 

Prob.  Act,  sec.  306.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Cal.  Rep.  Cit.     7,  232. 

§  1731.  Civil  officers  to  give  notice  of  waste  to  public 
administrator.  All  civil  officers  must  inform  the  public 
administrator  of  all  property  known  to  them,  belonging 
to  a  decedent,  which  is  liable  to  loss,  injury,  or  waste,  and 
which,  by  reason  thereof,  ought  to  be  in  the  possession  of 
the  public  administrator.     En.  March  11,  1872. 


653  PUB-LIC    ADMINISTRATOR.  §§  1732-1735 

Prob.  Act,  sec.  307.  Eu.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

§  1732.  Suits  for  property  of  decedents.  The  public 
administrator  must  institute  all  suits  and  prosecutions 
necessary  to  recover  the  property,  debts,  papers,  or  other 
estate  of  the  decedent.    En.   March   11,   1872. 

Prob.  Act,  sec.  808.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

§  1733.  Order  to  examine  party  charged  with  embezzling 
estate.  When  the  public  administrator  complains  to  the 
superior  court,  or  a  judge  thereof,  on  oath,  that  any  person 
has  concealed,  embezzled,  or  disposed  of,  or  has  in  his 
possession  any  money,  goods,  property,  or  effects,  to  the 
possession  of  which  such  administrator  is  entitled  in  his 
official  capacity,  the  court  or  judge  may  cite  such  person 
to  appear  before  the  court,  and  may  examine  him,  on  oath, 
touching  the  matter  of  such  complaint.  En.  March  11,  1872, 
Am'd.  1880,  107. 

Prob.  Act,  sec.  309.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  448. 

Citation:  Ante,  sees.  1707-1711. 

§  1734.  Punishment  for  refusing  to  attend.  All  such 
interrogatories  and  answers  must  be  reduced  to  writing 
and  signed  by  the  pai'ty  examined,  and  filed  in  the  court. 
If  the  person  so  cited  refuses  to  appear  and  submit  to 
such  examination,  or  to  answer  such  interrogatories  as 
may  be  put  to  him  touching  the  matter  of  such  complaint, 
the  court  may  commit  him  to  the  county  jail,  there  to 
remain,  in  close  custody,  until  he  submits  to  the  order  of 
the  court.     En.   March   11,  1872.     Am'd.   1880,   107. 

Prob.  Act,  sec.  310.  En.  April  22,  1850.  Rep.  1851,  489. 
En.  1851,  449. 

Contempt:   Ante,  sees.  1209  et  seq. 

§  1735.  Order  on  public  administrator  to  account.  The 
court  may,  at  any  time,  order  the  public  administrator  to 
account  for  and  deliver  all  the  money  and  property  of  an 
estate  in  his  hands  to  the  heirs,  or  to  the  executors  or 
administrators  regularly  appointed.  En.  March  11,  1872. 
Am'd.  1880,  108. 

Cal.   Rep.    Cit.     146,    597. 


§§  173G.  1737  PUBLIC    ADMINISTRATOR.  (iM 

Prob.  Act,  sec.  311.     En.   April  22,  1850.     Rep.   1850,  489. 
En.  1851,   448. 
Cal.    Rep.   Cit.     7,    232. 


§  1736.     Every  six   months  to   make   and    publish    return 

of  condition  of  estate.  The  public  administrator,  or  any 
person  who  received  letters  of  administration  while  acting 
as  public  administrator,  must,  once  in  every  six  months, 
make  to  the  superior  court,  under  oath,  a  return  ot  all 
the  estates  of  decedents  which  have  come  into  his  hands, 
the  value  of  each  estate,  the  money  which  has  come  into 
his  hands  from  every  such  estate,  and  what  he  has  done 
with  it,  and  the  amount  of  his  fees,  and  expenses  incurred 
in  each  estate,  and  the  balance,  if  any,  in  each  such  case 
remaining  in  his  hands;  publish  the  same  six  times  in 
some  newspaper  published  in  the  county,  or  if  there  is 
none,  then  post  the  same,  legibly  written  or  printed,  in  the 
office  of  the  county  cleric  of  the  county.  One  copy  of  the 
return  must  be  filed  with  papers  in  each  estate  so  reported. 
En.  March  11,  1872.  Am'd.  1880,  108;  1895,  157. 
Cal.  Rep.  Cit.     127,  185;   127,  188;   146,  594. 

Prob.  Act,  sec.  812.  En.  April  22,  1850.  Rep.  1851,  489. 
En.   1851,  448. 

Cal.  Rep.  Cit.     7,  232. 

§  1737.  Moneys  paid  to  county  treasurer.  Investments. 
Escheat.  It  is  the  duty  of  every  public  administrator,  as 
soon  as  he  shall  receive  the  same,  to  deposit  with  the 
county  treasurer  of  the  county  in  which  the  probate  pro- 
ceedings are  pending,  all  moneys  of  the  estate  not  required 
for  the  current  expenses  of  the  administration;  and  such 
moneys  may  be  drawn  upon  the  order  of  the  executor  or 
administrator,  countersigned  by  a  superior  judge,  when 
required  for  the  purposes  of  administration.  It  shall  be 
the  duty  of  the  county  treasurer  to  receive  and  safely  keep 
all  such  moneys,  and  pay  them  out  upon  the  order  of  the 
executor  or  administrator,  when  countersigned  by  a  supe- 
rior judge,  and  not  otherwise,  and  to  keep  an  account  with 
such  estate  of  all  moneys  received  and  paid  to  him;  and  the 
county  treasurer  shall  be  allowed  one  per  cent  upon  all 
moneys  received  and  kept  by  him,  and  no  greater  fees  for 
any  services  herein  provided;  and  for  the  safekeeping  and 
payment  of  all  such  moneys,  as  herein  provided,  the  said 


655  PUBLIC    ADMINISTRATOR.  §5     1738-1740 

treasurer  and  his  sureties  shall  be  responsible  upon  his 
official  bond.  The  moneys  thus  deposited  may,  upon  order 
of  the  court,  be  invested,  pending  the  proceedings,  in 
securities  of  the  United  States,  or  of  this  state,  when  such 
investment  is  deemed  by  the  court  to  be  for  the  best 
interests  of  the  estate.  After  a  final  settlement  of  the 
affairs  of  any  estate,  if  there  be  no  heirs,  or  other  claimants 
thereof,  the  county  treasurer  shall  pay  into  the  state 
treasury  all  moneys  and  effects  in  his  hands  belonging  to 
the  estate,  upon  order  of  the  court;  and  if  any  such  moneys 
and  effects  escheat  to  the  state,  they  must  be  disposed  ol 
as  other  escheated  estates.  En.  March  11,  1872.  Am'd. 
1873-4,  376;    1880,   108. 

Cal.  Rep.  Cit.     143,  196;   143,  202;   143,  204;   143,  205;   143, 

206. 
Escheated   estates:  Ante,   sees.    1269-1272. 

§  1738.  Not  to  be  interested  in  the  payments  for  or  on 
account  of  estates  in  Ills  hands.  The  public  administrator 
must  not  be  interested  in  the  expenditures  of  any  kind 
made  on  account  of  any  estate  he  administers;  nor  must 
he  be  associated  in  business  or  otherwise  with  any  one  who 
is  so  interested,  and  he  must  attach  to  his  report  and 
publication,  made  in  accordance  with  the  preceding  sec- 
tion, his  affidavit  to  that  effect.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     55,  142;   103,  586. 

§  1739.  When  to  settle  with  county  clerk,  and  how  un- 
claimed estate  disposed  of.  Public  administrators  are 
required  to  account,  under  oath,  and  to  settle  and  adjust 
their  accounts  relating  to  the  care  and  disbursement  ol 
money  or  property  belonging  to  estates  in  their  hands,  with 
the  county  clerks  of  their  respective  counties,  on  the  first 
Monday  in  January  and  July  in  each  year;  one  copy  of  said 
account  to  be  filed  with  tho  papers  in  each  of  such  estates; 
and  they  must  pay  to  the  county  treasurer  any  money  re- 
maining in  their  hands  of  an  estate  unclaimed,  as  provided 
in  sections  sixteen  hundred  and  ninety-three  to  sixteen 
hundred  and  ninety-six,  both  inclusive.  En.  March  11, 
1872.     Am'd.  1895,  124. 

Cal.  Rep.  Cit.     76,  298;  123,  549;  146,  594. 

§  1740.  Proceedings  against  public  administrator  for 
failure  to  pay  over  money  as  ordered.  When  it  appears, 
from  the  returns  made  in  pursuance  of  the  foregoing  sec- 


§§  1741-1744  PUBLIC   ADMINISTRATOR.  656 

tions,  that  any  money  remains  in.  the  hands  of  the  public 
administrator  (after  a  final  settlement  of  the  estate)  un- 
claimed, which  should  be  paid  over  to  the  county  treasurer, 
the  superior  court,  or  a  judge  thereof,  must  order  the  same 
to  be  paid  over  to  the  county  treasurer;  and  on  failure  of 
the  public  administrator  to  coir  ply  with  the  or.'er  within 
ten  days  after  the  same  is  made,  the  district  attorney  for 
the  county  must  immediately  institute  the  requisite  legal 
proceedings  against  the  public  administrator  for  a  judg- 
ment against  him  and  the  sureties  on  his  official  bond,  in 
the  amount  of  money  so  withheld,  and  costs.  En.  March 
11,  1872.  Am'd.  1880,  109. 
Cal.  Rep.  Cit.     146,    594. 

§  1741.  Fees  of  officers,  when  and  by  whom  paid.  The 
fees  of  all  officers  chargeable  to  estates  in  the  hands  oE 
public  administrators,  must  be  paid  out  of  the  assets  there- 
of so  soon  as  the  same  come  into  his  hands.  En.  March  11, 
1872. 

§  1742.  Public  administrator  to  administer  oaths.  Pub- 
lic administrators  may  administer  oaths  in  regard  to  all 
matters  touching  the  discharge  of  their  duties,  or  the  ad- 
ministration of  estates  in  their  hands.     En.  March  11,  1872. 

Administration  of  oaths:   Post,  sees.  2093  et  seq. 

Cal.  Rep.  Cit.     146,   594, 

§  1743.  Preceding  chapters  applicable  to  public  adminis- 
trator. When  no  direction  is  given  in  this  chapter  for  the 
government  or  guidance  of  a  public  administrator  in  the 
discharge  of  his  duties,  or  for  the  administration  of  an 
estate  in  his  hands,  the  provisions  of  the  preceding  chap- 
ters of  this  title  must  govern.     En.  March  11,  1S72. 

Cal.  Rep.  Cit.     76,  298;  101,  613;  146,  592. 

§  1744.  To  file  reports.  Penalty  for  failure.  Duty  of 
district  attcrney.  Every  public  administrator,  or  person 
v/ho  holds  letters  of  administration,  who  was  appointed 
while  acting  as  public  administrator,  who  fails  to  comply 
with  the  provisions  of  sections  seventeen  hundred  and 
thirty-five,  seventeen  hundred  and  thirty-six,  and  section 
seventeen  hundred  and  thirty-nine  of  this  code,  is  guilty  of 
a  misdemeanor;  and  upon  conviction  thereof,  shall  be 
punished  by  a  fine  not  less  than  one  hundred  dollars  for 
each  offense;  and  it  shall  be  the  duty  of  the  district  attor- 
ney of  the  county  to  see  that  the  provisions  of  this  chapter 
are  fullv  complied  with.     En.  Stats.  1895,  38. 

Cal.    Rep.   Cit.     146,    75. 


657  GUARDIAN    AND    WARD.  8^47 

CHAPTER  XrV. 

OF   GUARDIAN   AND   WARD. 

Article  I.  Guardians    of    Minors,    §§    1747-1759. 

II.  Guardians    of    Insane   and    Incompetent    Persons,    §§    1763-1767. 

III.  The    Powers   and    Duties   of   Guardians,    §§    17GS-1776. 

IV.  The    Sale    of    Property    and    Disposition    of    Proceeds,     §    1777- 

1792. 
V.     Nonresident    Guardians    and    Wards,    §§    1793-1799. 
VI.     General    and    Miscellaneous    Provisions,    §§    1800-1810. 

ARTICLE  I. 

GUARDIANS    OF    MINORS. 

§  1747.  Superior  court  to  appoint  guardians,  when  and  on  what  peti- 
tion. 

§  1748.    When   minor  may  nominate  guardian;  when  not. 

§  1749.  When  appolntmeat  may  be  made  by  court,  when  minor  is  ov«P 
fourteen. 

§  1750.     Nomination   by   minors  after   arriving   at   fourteen. 

§  1751.    Who   may   be   guardian.     Marriage   of  guardian. 

§  1752.     Minor   having  no   father   or  mother. 

§  1753.     Powers   and  'duties   of   guardian. 

§  1754.     Bond    of   guardian,    conditions    of. 

§  1755.     Court   may    insert   conditions   in   order  appointing  guardian. 

§  1756.     Letters    of   guardianship   and    bond    of   guardian    to    be    recorded. 

§  1757.     Maintenance   of   minor   out   of   income   of   his   own   property. 

§  1758.     Guardian    to    give    bond.     Powers    limited. 

§  1759.  Power  of  courts  to  appoint  guardians  and  next  friend  not  Im- 
paired. 

§  17$0.    Transfer    of   proceedings    from    one   county    to   another. 

Gen.  Cit.  to  Art. — Cal.  Rep.  Cit.  Ill,  271, 

§  1747.  Superior  court  to  appoint  guardians,  when  and 
on  what  petition.  The  superior  court  of  each  county,  when 
it  appears  necessary  or  convenient,  may  appoint  guardians 
for  the  persons  and  estates,  or  either  of  them,  of  minors 
who  have  no  guardian  legally  appointed  by  will  or  deed, 
and  who  are  inhabitants  or  residents  of  the  county,  or  who 
reside  without  the  state  and  have  estate  within  the  county. 
Such  appointment  may  be  made  on  the  petition  of  a  relative 
or  other  person  on  behalf  of  the  minor,  or  on  the  petition  of 
the  minor,  if  fourteen  years  of  age.  Before  making  such 
appointment,  the  court  must  cause  such  notice  as  such 
court  deemp  reasonable  to  be  given  to  any  person  having 
the  care  of  such  minor,  and  to  sucli  relatives  of  the  minor 
residing  in  the  county  as  the  court  may  deem  proper.  In 
all  such  proceedings  when  it  appears  to  the  satisfaction  of 

Code  Civil  Proc— 42. 


5J  174S,  1743  GUARDIAN    AND    WARD.  65S 

the  court,  either  from  a  verified  petition,  or  from  afiQdavits, 
that  the  welfare  of  the  minor  will  be  imperiled  if  such 
minor  is  allowed  to  remain  in  the  custody  of  the  person 
then  having  the  care  of  such  minor,  the  court  may  make  an 
order  providing  for  the  temporary  custody  of  such  minor 
until  a  hearing  can  be  had  on  such  petition;  and  when  it 
appears  to  the  court  that  there  is  reason  to  believe  that 
such  minor  will  be  carried  out  of  the  jurisdiction  of  the 
court  before  which  the  application  is  made,  or  will  suffer 
some  irreparable  injury  before  compliance  with  such  order 
providing  for  the  temporary  custody  of  such  minor  can  be 
enforced,  such  court  may  at  the  time  of  making  such  order 
providing  for  the  temporary  custody  of  such  minor  cause 
a  warrant  to  be  issued,  reciting  the  facts  and  directed  to 
the  sheriff,  coroner,  or  constable  of  the  county,  command- 
ing such  ofScer  to  take  such  minor  from  the  custody  of  the 
person  in  whose  care  such  minor  then  is  and  place  such 
minor  in  custody  in  accordance  with  ihe  order  of  the  court. 
En.  March  11,  1872.     Am'd.  1873-4,  ;]77;    1880,65;    1903,204. 

Cal.  Rep.  Cii.  74,  424;  83.  352;  84,  596;  95,  377;  109,  646; 
109,647;  109,649;  109.656;  126,55;  128,219;  130, 
383;    131,  182;  140,  266;    142,  413;    143,  406;    143,  407. 

Powers  and  duties  of  guardians:   Post,  sees.  1TG8  et  seq. 

Guardian  and  ward:    See  Civ.  Code,  sees.  236-258. 

Guardian  ad  litem:  Ante,  sees.  372,  373;  post,  sees.  1722, 
1759,   1769. 

Minors  who  are:   Civ.  Code,  sees.  25,  26. 

Freeing  from  parental  authority  because  of  abuse:  Civ. 
Code.  sec.  203. 

Authority  of  parent  ceases  when:   Civ.  Code,  sec.  204. 

Seal  necessary  to  appointment  of  guardian:  Ante,  sec. 
153,  subd.  2. 

§  1748.  When  minor  may  nominate  guardian;  when  not. 
If  the  minor  is  under  the  age  of  fourteen  years,  the  court 
may  nominate  and  appoint  his  giiardian.  If  he  is  fourteen 
years  of  age,  he  may  nominate  his  own  guardian,  who,  if 
approved  Dv  the  court,  must  be  appointed  accordingly.  En. 
March  11,  1872.     Am'd.  1880,  65. 

Cal.  Rep.  Cit.     142,  413;    143,  407. 

§  1749.  When  appointment  may  be  made  by  court,  when 
minor  is  over  fourteen.  If  the  guardian  nominated  by  the 
minor  is  not  approved  by  the  court,  or  if  the  minor  resides 


559  GUARDIAN   AND   WARD.  §§  17&0-1753 

out  Of  the  State,  or  if,  after  being  duly  cited  by  the  court 
he  neglects  for  ten  davs  to  nominate  a  suitable  person,  the 
court  or  judge  may  nominate  and  appoint  the  guardian  in 
the  same  manner  as  if  the  minor  were  under  the  age  of 
fourteen  years.  En.  March  11,  1872.  Am  d.  1880,  6t). 
Cal.  Rep.  Cit.     72,  24;   142,  413;    143,  40  <. 

8  1750.     Nomination  by  minors  after  arriving  at  fourteen. 

When  a  guardian  has  been  appointed  ^Y  the  court  for  a 
minor  under  the  age  of  fourteen  years,  the  f'^l^'^^^^I 
time  after  he  attains  that  age,  may  appoint  his  ojvn  |^^J 
dian.  subject  to  the  approval  of  the  court.  En.  March  11. 
1872.  Am'd.  1880,  65. 
Cal.  Rep.  Cit.     142,  413. 

5  1751.  Who  may  be  guardian.  Marriage  of  guardian. 
The  father  or  the  mother  of  a  minor  child  under  the  age  of 
fourteen  years,  if  found  by  the  court  competent  to  dis- 
charge the  duties  of  guardianship,  is  entitled  to  be  ap- 
pointed a  guardian  of  such  minor  child,  in  preference^  to 
any  other  person.  The  person  nominated  by  a  minor  of  the 
age  of  fourteen  years  as  his  guardian,  whether  married  or 
unmarried,  may,  if  found  by  the  court  competent  to  dis- 
charge the  duties  of  guardianship,  be  appointed  as  su^ 
Sfrdlan.  The  authority  of  a  guardian  is  not  extinguished 
nor  affected  by  the  marriage  of  the  guardian.     En.  March 

^ne^^:'S^;  130,383;  142,413;  142,414; 
142   426;    143,  234.  ^  _*       - 

The  parent,  as  such,  has  no  control  over  the  property  of 
the  child:   Civ.  Code,  sec.  202. 

Bond,  testamentary  guardian  must  give:   Post,  sec.  1.58. 

§  1752  iVIinor  having  no  father  or  mother.  If  the  minor 
has  no  father  or  mother  living,  competent  to  have  the 
custody  and  care  of  his  education,  the  guardian  appointed 
shall  have  the  same.    En.  March  11,  1872. 

6  1753  Powers  and  duties  of  guardian.  Every  guardian 
appointed  shall  have  the  custody  and  care  of  th^  education 
of  me  minor  and  the  care  and  management  of  his  estate, 
until  such  minor  arrives  at  the  age  of  majority  or  marries, 
or  until  the  guardian  is  legally  discharged.    En.  March  11, 

^%al    Rep.  Cit.     117,  644;     120,  204;     121,  474;     121.  475; 
142,  426;    143,  229;    143,  403. 
Residence  of  ward:   Civ.  Code,  sec.  213. 


§1  1754,  1755  GUARDIAN   AND   WARD.  $80 

§  1754.  Bond  of  guardian,  conditions  of.  Before  the  or- 
der appointing  any  person  guardian  under  this  chapter 
takes  effect,  and  before  letters  issue,  the  court  must  re- 
quire of  such  person  a  bond  to  the  minor  with  sufficient 
sureties,  to  be  approved  by  the  Judge,  and  in  such  suna  as 
he  shall  order,  conditioned  that  the  guardian  will  faithfully 
execute  the  duties  of  his  trust  according  to  law,  and  the 
following  conditions  shall  form  a  part  of  such  bond  with- 
out being  expressed  therein: 

1.  To  make  an  inventory  of  all  the  estate,  real  and  per- 
sonal, of  his  v,'ard,  that  comes  to  his  possession  or  knowl- 
edge, and  to  return  the  same  within  such  time  as  the  court 
may  order. 

2.  To  dispose  of  and  manage  the  estate  according  to  law 
and  for  the  best  interest  of  the  ward,  and  faithfully  to  dis- 
charge his  trust  in  relation  thereto,  and  also  in  relation  to 
the  care,  custody,  and  education  of  the  ward. 

3.  To  render  an  account  on  oath  of  the  property,  estate, 
and  moneys  of  the  ward  in  his  hands,  and  all  proceeds  or 
interests  derived  therefrom,  and  of  the  management  and 
disposition  of  the  same,  within  three  months  after  his 
appointment,  and  at  such  other  times  as  the  court  directs, 
and  at  the  expiration  of  his  trust  to  settle  his  accounts 
with  the  court,  or  with  the  ward,  if  he  be  of  full  age,  or  his 
legal  representatives,  and  to  pay  over  and  deliver  all  the 
estate,  moneys,  and  effects  remaining  in  his  hands,  or  due 
from  him  on  such  settlement,  to  the  person  who  is  lawfully 
entitled  thereto.  Upon  filing  the  bond,  duly  approved, 
letters  of  guardianship  must  issue  to  the  person  appointed. 
In  form  the  letters  of  guardianship  must  be  substantially 
the  same  as  letters  of  administration,  and  the  oath  of  the 
guardian  must  be  indorsed  thereon  that  he  will  perform 
the  duties  of  his  office  as  such  guardian  according  to  law. 
En.  March  11,  1872.     Am'd.  1880,  65. 

Gal.  Rep.  Cit.     53,  17;     65,  229;     84,  596;     84,  597;     117, 

644.     Subd.  3—121,  472;    121,  474;    143,  236. 
Accounts  of  guardians — rendering:  Post,  sees.  1773,  1774. 
Guardian's    bond:   Post,    sec.    1758;     liability     on:   Ante, 
sec.    1407. 

§  1755.  Court  may  insert  conditions  in  order  appointing 
guardian.  When  any  person  is  appointed  guardian  of  a 
minor,  the  court  may,  with  the  consent  of  such  person,  in- 
sert in  the  order  of  appointment,  conditions  not  otherwise 
obligatory,  providing  for  the  care,  treatment,  education, 
and  welfare  of  the  minor,  and  for  the  care  and  custody  o£ 


Ml  GUARDIAN    AND    WARD  §§  1756-1768 

his  property.  The  performance  of  such  conditions  shall 
be  a  part  of  the  duties  of  the  guardian,  for  the  faithful 
performance  of  which  he  and  the  sureties  on  his  bond  shall 
be  responsible.  En.  March  11,  1872.  Am'd.  1880,  66;  1899, 
4. 

Guardian's  bond — liability  on:    Ante,  sec.   1407. 

Letters  of  g\iardianship — special,  issuable  at  chambers: 
Ante,  sec.  166. 

§  1756.  Letters  of  guardianship  and  bond  of  guardian  to 
be  recorded.  All  letters  of  guardianship  issued,  and  all 
guardian's  bonds  executed  under  the  provisions  of  this 
chapter,  with  the  aflBdavlts  and  certificates  thereon,  must 
be  recorded  by  the  clerk  of  the  court  having  jurisdiction 
of  the  persons  and  estates  of  the  wards.  En.  March  11, 
1872.     Am'd.  1880,  66. 

§  1757.  Maintenance  of  minor  out  of  income  of  his  own 
property.  If  any  minor  having  a  father  living  has  property, 
the  income  of  which  is  suflBcient  for  his  maintenance  and 
education  in  a  manner  more  expensive  than  his  father  can 
reasonably  afford,  regard  being  had  to  the  situation  of  the 
father's  family  and  to  all  the  circumstances  of  the  case, 
the  expenses  of  the  education  and  maintenance  of  such 
minor  may  be  defrayed  out  of  the  income  of  his  own  prop- 
erty, in  whole  or  in  part,  as  judged  reasonable,  and  must 
be  directed  by  the  court;  and  the  charges  therefor  may  be 
allowed  accordingly  in  the  settlement  of  the  accounts  of 
his  guardian.     En.  March  11,  1872.     Am'd.  1880,  66. 

§  1758.  Guardian  to  give  bond.  Powers  limited.  EJvery 
testamentary  guardian  must  qualify  and  has  the  same 
powers  and  must  perfom  the  same  duties  with  regard  to 
the  person  and  estate  of  his  ward  as  guardians  appointed 
by  the  court,  except  so  far  as  his  powers  and  duties  are 
legally  modified,  enlarged,  or  changed  by  the  will  by  which 
such  guardian  was  appointed,  and  except  that  such  guar- 
dian need  not  give  bond  unless  directed  to  do  so  by  the 
court  from  which  the  letters  of  guardianship  issue.  En. 
March  11,  1872.     Am'd.  1880,  67;    1903,  53. 

Cal.  Rep.  Cit.     55,  85;    84,  596. 

Testamentary  guardian — bond  of:     Ante,  sec.  1754. 
Guardian's  bond,  liability  on:  Ante,  sec.  1407. 


§§  1759,  1760  GUARDIAN    AND   WARD.  M2 

§  1759.  Power  of  courts  to  appoint  guardians  and  next 
friend  not  impaired.  Nothing  contained  in  this  chapter 
affects  or  impairs  the  power  of  any  court  to  appoint  a 
guardian  to  defend  the  interests  of  any  minor  interested 
in  any  suit  or  matter  pending  therein.     En.  March  11,  1872. 

Guardian  ad  litem:  Ante,  sees.  372,  373,  1722;  post,  sec. 
1769. 

§  1760.  Transfer  of  proceedings  from  one  county  to  an- 
other county.  The  superior  court  of  any  county  in  this 
state  in  which  is  now  pending,  or  in  which  there  may  be 
hereafter  commenced,  any  proceeding  which  has  for  its 
object  the  guardianship  of  the  estate  of  any  minor  or  in- 
sane or  incompetent  person,  or  the  guardianship  of  the 
person  of  any  minor  or  insane  or  incompetent  person,  or 
both  the  guardianship  of  the  estate  and  the  guardianship 
of  the  person  of  a  minor  or  insane  or  incompetent  person, 
may  malie  an  order  transferring  such  proceeding  to  the 
superior  court  of  any  other  county  in  this  state,  in  the 
manner  herein  provided;  except  that  no  such  proceeding 
shall  be  transferred  to  the  court  of  any  county  which  at 
the  time  of  such  proceeding  would  not  have  jurisdiction 
to  issue  original  letters  in  such  matter  or  proceeding. 

To  obtain  an  order  for  such  removal,  the  guardian  of 
the  person  or  estate,  or  both,  of  such  minor  or  insane  of 
incompetent  person,  shall  file  in  the  superior  court  of  the 
county  where  such  proceeding  is  pending,  a  verified  peti- 
tion setting  forth  the  following  matters: 

1.  The  name  of  the  county  to  the  superior  court  of  which 
it  is  sought  to  remove  such  proceedings; 

2.  The  name  of  the  county  or  counties  in  which  the 
ward  resides  and  that  in  which  the  guardian  resides; 

3.  The  name  of  the  county  or  counties  in  which  the 
property  of  Such  ward  is  situated,  and  a  designation  of  the 
character  and  condition  thereof; 

4.  The  reasons  for  such  removal; 

5.  The  names  and  residences,  so  far  as  they  are  known 
to  said  guardian,  of  any  relative  of  such  minor  ward  re- 
siding in  said  county  in  which  said  proceeding  is  pending; 

6.  The  names  and  residences,  so  far  as  the  same  are 
known  to  said  guardian,  of  the  relatives  within  the  third 
degree  of  such  insane  or  incompetent  ward  residing  in  said 
county. 

Upon  filing  such  petition  an  order  shall  be  made  by  the 
court  or  judge  fixing  a  time  for  hearing  said  petition, 
which  shall  be  not  less  than  five  days  thereafter,  and  di- 


W3  GUARDIAN    AND    WARD.  §  1"63 

recting  that  a  copy  of  such  order  be  sent  through  the 
United  States  mail  to  each  of  the  said  relatives  of  such 
minor  or  insane  or  incompetent  ward,  named  in  said  peti- 
tion as  resident  in  the  county  in  which  said  proceeding  is 
pending. 

The  court  may  require  such  other  or  further  notice  of 
said  hearing  as  it  may  deem  proper. 

At  the  time  fixed  for  the  hearing  of  said  petition  any 
relatives  of  such  ward,  or  any  person  interested  in  the  es- 
tate of  such  ward,  may  appear  and  file  written  grounds  of 
opposition  to  said  petition.  If  after  hearing  the  evidence 
of  the  petitioner,  and  contestant  if  any,  it  shall  appear  to 
the  court  that  it  is  for  the  best  interest  and  advantage 
of  said  ward,  or  of  the  estate  of  said  ward  that  the  re- 
moval of  said  proceeding  be  had  to  the  court  designated 
in  said  petition,  or  to  the  superior  court  of  any  other 
county,  it  shall  enter  an  order  directing  the  removal  there- 
of to  said  court  and  directing  the  clerk  to  forward  all  pa- 
pers on  file  therein  to  the  clerk  of  the  court  to  which  said 
proceeding  has  been  ordered  removed,  and  thereafter  the 
court  to  which  said  proceeding  has  been  removed  shall 
have  jurisdiction  of  all  proceedings  therein  as  fully  as  if 
said  proceeding  had  been  originally  begun  In  said  court. 

The  clerk  of  the  court  to  which  said  proceeding  is  re- 
moved shall  be  entitled  to  receive  a  fee  of  six  dollars  on 
filing  the  papers  transmitted  to  him,  in  addition  to  the  ex- 
pense of  such  transmission,  payable  on  receipt  of  the 
papers  by  him.     En.  Stats.  1905,  171. 

ARTICLE  II. 

GUARDIANS   OF   rNSANE    AND    INCOMPETENT    PERSONS. 

§  1763.  Guardians   of   insane   and   other   incompetent    persons. 

§  1764.  Appointment   of   guardian    by   court   after   heaxing. 

§  1765.  Powers   and   duties   of   such  gxiardian. 

§  1766.  Proceeding   for   restoration  to  capacity. 

§  1767.  Definition   of   incompetent. 

§  1763.  Guardians  of  insane  and  other  incompetent  per- 
sons. When  it  is  represented  to  the  superior  court,  or  a 
judge  thereof,  upon  verified  petition  of  any  relative  or 
friend,  that  any  person  is  insane,  or  from  any  cause  men- 
tally incompetent  to  manage  his  property,  such  court  or 
judge  must  cause  a  notice  to  be  given  to  the  supposed  in- 
sane or  incompetent  person  of  the  time  and  place  of  hear- 
ing the  case,  not  less  than  five  days  before  the  time  so 
appointed,  and  such  person,  if  able  to  attend,  must  be  pro- 
duced on  the  hearing.     En.  March  11,  1872.     Am'd.  1880,  67. 


§§  1764-1766  GUARDIAN    ANU   WARD.  iSft* 

Cal.  Rep.  Cit.  57,  531;  87,  195;  120,  142;  120,  696;  120, 
697;    127,  338;    134,  032;     140,  337;     143,  465. 

Right  of  person  charged  with  insanity  to  jury  trial: 
See  Pol.  Code,  sec.  2174. 

Guardian  ad  litem — of  insane  or  incompetent  person: 
Ante,  sees.  372,  373,  1722,  1759;    post,  sec.  1769. 

Placing  lunatic  in  asylum:  Civ.  Code,  sec.  258. 

Insane  person — homestead  of:   See  Stats.  1874,  p.  582. 

Sale  of  homestead  where  husband  or  wife  insane:  Civ. 
Code,  sec.  1242. 

§  1764.  Appointment  of  guardian  by  court  after  hearing. 
If,  after  a  full  hearing  and  examination  upon  such  peti- 
tion, it  appear  to  the  court  that  the  person  in  question  is 
incapable  of  taking  care  of  himself  and  managing  his 
property,  such  court  must  appoint  a  guardian  of  his  person 
and  estate,  with  the  powers  and  duties  in  this  chapter 
specified.     En.  March  11,  1872.     Am'd.  1880,  67. 

Cal.  Rep.  Cit.  87,  197;  120,  142;  120,  696;  120,  697; 
140,  337;    143,  465;    143,  467. 

Appointment  at  chambers:  Ante,  sec.  166;  seal  neces- 
sary:  Sec.  153,  subd.  2. 

§  1765.  Powers  and  duties  of  such  guardians.  TSyerj 
guardian  appointed,  as  provided  in  the  preceding  section, 
has  the  care  and  custody  of  the  person  of  his  ward,  and 
the  management  of  all  his  estate  until  such  guardian  is 
legally  discharged;  and  he  must  give  bond  to  such  ward, 
in  like  manner  and  with  like  conditions  as  before  pre- 
scribed with  respect  to  the  guardian  of  a  minor.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     140,  337. 

Bond  of  guardian:   Ante,  sec.  1754. 

§  1766.     Proceeding     for     restoration    to    capacity.     Any 

person  who  has  been  declared  insane  or  incompetent,  or 
the  guardian,  or  any  relative  of  such  person  within  the 
third  degree,  or  any  friend,  may  apply,  by  petition,  to  the 
superior  court  of  the  county  in  which  he  was  declared  in- 
sane to  have  the  fact  of  his  restoration  to  capacity  judi- 
cially determined.  The  petition  shall  be  verified,  and 
shall  state  that  such  person  is  then  sane  or  competent 
Upon  receiving  the  petition,  the  court  must  appoint  a  day 
for  a  hearing  before  the  court,  and,  if  the  petitioner  re- 
quest it,  shall  order  an  investigation  before  a  jury,  which 
shall  be  summoned  and  impaneled  in  the  same  manner  as 
juries  are  summoned  and  impaneled  in  civil  actions.     The 


6C5  GUARDIAN    AXD    WARD.  §§  1767,  1763 

court  shall  cause  notice  of  the  trial  to  be  given  to  the 
guardian  of  the  person  so  declared  insane  or  incompetent, 
if  there  be  a  guardian,  and  to  his  or  her  husband  or  wife, 
if  there  be  one,  and  to  his  or  her  father,  or  mother,  if  liv- 
ing in  the  county.  On  the  trial,  the  guardian  or  relative 
of  the  person  so  declared  insane  or  incompetent,  and,  in 
the  discretion  of  the  court,  any  other  person  may  contest 
the  right  to  the  relief  demanded.  Witnesses  may  be  re- 
quired to  appear  and  testify,  as  in  civil  cases,  and  may  be 
called  and  examined  by  the  court  on  its  own  motion. 
If  it  be  found  that  the  person  be  of  sound  mind,  and  capa- 
ble of  taking  care  of  himself  and  his  property,  his  restor- 
ation to  capacity  shall  be  adjudged,  and  the  guardian  of 
such  person,  if  such  person  be  not  a  minor,  shall  cease. 
En.  Stats.  1873-4,  377.     Am'd.  1880,  67. 

Cal.  Rep.  Cit.  68,  282;  87,  195;  87,  197;  99,  222;  120, 
142;    120,  143;    137,  681;    140,  337;    143,  467. 

Habeas  corpus,  right  to  where  one  detained  as  insane: 
See  Pol.  Ck)de,  sec.  2188. 

§  1767.  Definition  of  incompetent.  The  phrase  "incom- 
petent," 'mentally  incompetent,"  and  "incapable,"  as 
used  in  this  chapter,  shall  be  construed  to  mean  any  per- 
son who,  though  not  insane,  is,  by  reason  of  old  age,  dis- 
ease, weakness  of  mind,  or  from  any  other  cause,  unable, 
unassisted,  to  properly  manage  and  take  care  of  himself  or 
his  property,  and  by  reason  thereof  would  be  likely  to  be 
deceived  or  imposed  upon  by  artful  or  designing  persons. 
En.  Stats.  1891,  68. 

CaL  Rep.  Cit.     130,  354;   140,  337;    140,  338. 

ARTICLE  III. 

THE    POWERS    AND    DUTIES    OF    GUARDIANS. 

§  1768.     Guardian   to  pay  debts  of  ward  out  of  ward's  estate. 

§  1769.     Guardian    to    recover    debts   vine    his    ward    and    represent    him. 

§  1770.  Guardian  to  manage  his  estate,  maintain  ward,  and  seU  real 
estate. 

§  1771.     Maintenance,    support,    and   education    of   ward,    how    enforced. 

§  1772.     Guardians,    i>owers  of   In   petition. 

5  1773.  Guardian  to  return  Inventory  of  estate  of  ward.  Appraisers 
to  be  appointed.  Like  proceedings  when  other  property  ac- 
quired. 

§  1774.     Settlements   of  guardians. 

§  1775.     Allowance   of   accounts   of   joint    guardians. 

§  1776.     Expenses    amd    comi>ensation    of    guardians. 

§  1768.  Guardian  to  pay  debts  of  ward  out  of  ward's 
estate.  E^very  guardian  appointed  under  the  provisions  of 
this  chapter,   whether  for   a   minor   or  any   other   person. 


5§  1769-1771  GUARDIAN    AND    WARD.  666 

must  pay  all  just  debts  due  from  the  ward,  out  of  his  per- 
sonal estate,  and  the  income  of  his  real  estate,  if  sufficient; 
if  not,  then  out  of  his  real  estate,  upon  obtaining  an  order 
for  the  sale  thereof,  and  disposing  of  the  same  in  the  man- 
ner provided  in  this  title  for  the  sale  of  real  estate  of  de- 
cedents. En.  March  11,  1872. 
Order  of  sale  of  property:    Post,  sees.  1770,  1777  et  seq. 

§  1769.  Guardian  to  recover  debts  due  his  ward  and 
represent  him.  Every  guardian  must  settle  all  accounts  of 
the  ward,  and  demand,  sue  for,  and  receive  all  debts  due  to 
him,  or  may,  with  the  approbation  of  the  court,  compound 
for  the  same  and  give  discharges  to  the  debtor,  on  receiv- 
ing a  fair  and  Just  dividend  of  his  estate  and  effects;  and 
he  must  appear  for  and  represent  his  ward  in  all  legal 
suits  and  proceedings,  unless  another  person  be  appointed 
for  that  purpose.     En.  March  11,  1872.     Am'd.  1880,  68. 

Gal.  Rep.  Cit.     117,  644;   134,  248. 

Guardian  ad  litem:  Ante,  sees.  372,  373,  1722,  1759. 

§  1770.  Guardian  to  manage  his  estate,  maintain  ward, 
and  sell  reai  estate.  Every  guardian  must  manage  the 
estate  of  his  ward  frugally  and  without  waste,  and  apply 
the  income  and  profits  thereof,  as  far  as  may  be  necessary, 
for  the  comfortable  and  suitable  maintenance  and  sup- 
port of  the  ward  and  his  family,  if  there  be  any;  and  if 
such  Income  and  profits  be  insufficient  for  that  purpose, 
the  guardian  may  sell  or  mortgage  the  real  estate,  upon 
obtaining  an  order  of  the  court  therefor,  as  provided,  and 
must  apply  the  proceeds  of  such  sale  or  mortgage,  as  far 
as  may  be  necessary,  for  the  maintenance  and  support  of 
the  ward  and  his  family,  if  there  be  any.  En.  March  11, 
1872.     Am'd.  1900-01,  85. 

Cal.  Rep.  Cit.     117,  644;   134,  116. 

Sale  of  property^ — and  disposition  of  proceeds:  Post,  sees. 
1777  et  seq. 

§  1771.  IVIaintenance,  support,  and  education  of  ward, 
how  enforced.  When  a  guardian  has  advanced  for  the 
necessary  maintenance,  support,  or  education  of  his  ward, 
an  amount  not  disproportionate  to  the  value  of  his  estate 
or  his  condition  of  life,  and  the  same  is  made  to  appear  to 
the  satisfaction  of  the  court,  by  proper  vouchers  and 
proofs,  the  guardian  must  be  allowed  credit  therefor  in  his 
settlements.  Whenever  a  guardian  fails,  neglects,  or  re- 
fuses to  furnish  suitable  and  necessary  maintenance,  sup- 
port, or  education  for  his  ward,  the  court  may  order  him 
to  do  so,  and  enforce  such  order  by  proper  process.  When- 
ever any  third  person,  at  his  request,  supplies  a  ward  with 


e«T  GUARDIAN    AND    WARD.  85  1''72,  1773 

such  siiltable  and  necessary  maintenance,  support,  or  edu- 
cation, and  it  is  shown  to  have  been  done  after  refusal  or 
neglect  of  the  guardian  to  supply  the  same,  the  court  may 
direct  the  guardian  to  pay  tlierefor  out  of  the  estate,  and 
enforce  such  payment  by  due  process.     En.  March  11,  1872. 

§  1772.  Guardians,  powers  of  in  partition.  The  guardian 
may  join  in  and  assent  to  a  partition  of  the  real  or  per- 
sonal estate  of  the  ward,  wherever  such  assent  may  be 
given  by  any  person;  provided,  that  such  assent  can  only 
be  given  after  the  court  having  jurisdiction  over  said  es- 
tate shall  grant  an  order  conferring  such  authority,  which 
order  shall  only  be  made  after  a  hearing  in  open  court 
upon  the  petition  of  the  guardian  after  notice  of  at  least 
ten  days,  mailed  by  the  clerk  of  the  court  to  all  the  known 
relatives  of  the  ward  residing  in  the  county  where  the 
proceedings  are  pendin-g.  The  guardian  may  also  consent 
to  a  petition  of  the  real  or  personal  estate  of  his  ward 
without  action,  and  agree  upon  the  share  to  be  set  off  to 
such  ward,  and  may  execute  a  release  in  behalf  of  his 
ward  to  the  owners  of  the  shares,  of  the  parts  to  which 
they  may  be  respectively  entitled,  upon  obtaining  from 
said  court  having  jurisdiction  over  said  estate,  authority 
to  so  consent  after  a  hearing  in  open  court  upon  the  peti- 
tion of  the  guardian  after  notice  of  at  least  ten  days, 
mailed  by  the  clerk  of  the  court  to  all  the  known  relatives 
of  the  ward  residing  In  the  county  where  the  proceedings 
are  pending.     En.  March  11,  1872.     Am'd.  1899,  235. 

Assent  to  partition:  Ante,  sec.  795. 

Appearance  by  guardian:   Ante,  sees.  372,  1722. 

§  1773.  Guardian  to  return  inventory  of  estate  of  ward. 
Appraisers  to  be  appointed.  Like  proceedings  when  other 
property  acquired.  Every  guardian  must  return  to  the 
court  an  inventory  of  the  estate  of  his  ward  within  three 
months  after  his  appointment,  and  annually  thereafter. 
When  the  value  of  the  estate  exceeds  the  sum  of  one  hun- 
dred thousand  dollars,  semi-annual  returns  must  be  made 
to  the  court.  The  court  may,  upon  application  made  for 
that  purpose  by  any  person,  compel  the  guardian  to  render 
an  account  to  the  court  of  the  estate  of  his  ward.  The 
Inventories  and  accounts  so  to  be  returned  or  rendered 
must  be  sworn  to  by  the  guardian.  All  the  estate  of  the 
ward  described  in  the  first  inventory  must  be  appraised 
by  appraisers  appointed,  sworn,  and  acting  in  the  manner 
provided  for  regulating  the  settlement  of  the  estates  of 
decedents.  Such  inventory,  with  the  appraisement  of 
the  property  therein  described,  must  be  recorded  by  the 


§§  1774-1776  GUARDIAN    AND    WARD.  8ti8 

clerk  cf  the  court  !n  a  proper  book  kept  In  his  office  for 
that  purpose.  Whenever  any  other  property  of  the  estate 
of  any  ward  is  discovered,  not  included  in  the  inventory 
of  the  estate  already  returned,  and  vi'henever  any  other 
property  has  been  succeeded  to,  or  acquired  by  any  ward, 
or  for  his  benefit,  the  like  proceedings  must  be  had  for 
the  return  and  appraisement  thereof  that  are  herein  pro- 
vided in  relation  to  the  first  inventory  and  return.  En. 
March  11,  1872.     Am'd.  1880,  68. 

Cal.  Rep.  CIt.     109,  253;   109,  254. 

Where  joint  guardians:   Post,  sec.  1775. 

Appraisers — generally:   Ante,  sec.  1444. 

Account  may  be  received  at  chamibers:  Ante,  sec.  166. 

§  1774.  Settlements  of  guardians.  The  guardian  must, 
upon  the  expiration  of  a  year  from  the  time  of  his  ap- 
pointment, and  as  often  thereafter  as  he  may  be  required, 
present  his  account  to  the  court  for  settlement  and  allow- 
ance; provided,  that  no  final  account  of  any  Insane  person 
who  is  or  has  been  during  his  guardianship  confined  in 
a  state  hospital  in  this  state,  shall  be  settled  or  allowed 
unless  notice  of  the  settlement  of  said  account  shall  have 
been  first  given  to  the  secretary  of  the  state  commission  In 
lunacy.     En.   March   11,   1872.     Am'd.   1880,   68;    1905,  228. 

Cal.  Rep.  Clt.  57,  191;  109,  254;  121,  472;  183,  448;  133, 
449. 

8  1775.     Allowance  of  accounts  of  Joint  guardians.    When 

an  account  Is  rendered  by  two  or  more  joint  guardians, 
the  court  may,  in  Its  discretion,  allow  the  same  upon  the 
oath  of  any  of  them.    En.  March  11,  1872.     Am'd  1880,  68. 

§  1776.  Expenses  and  compensation  of  guardians.  Every 
guardian  must  be  allowed  the  amount  of  his  reasonable 
expenses  Incurred  In  the  execution  of  his  trust,  and  he 
must  also  have  such  compensation  for  his  services  as  the 
court  in  which  his  accounts  are  settled  deems  Just  and  rea- 
sonable.    En.  March  11,  1872. 

Cal.  Rep.  Clt.     73,  641. 

Expenses  Incurred — advances  made:   Ante,  see.  1771. 

ARTICLE  IV. 

THE     SALE     OF     PROPERTY     AND     DISPOSITION     OF     THE     PRO- 
CEEDS. 

0  1777.     May   sell   property   in   certain   cases. 

1  1778.     Sale  of  real  estate  to  be  made  upon  order  of  court. 
I  1779.     Application   of   proceeds   of   sales. 

I  1780.     Investment   of   proceeds   of   sales 
g  1781.    Order  for   Bale,    how   obtained. 


<69  GUARDIAN    AND    WARD.  g§  1717-1780 

§  1782.  Notice  to  next  of  kin,   how  given. 

§  1783.  Copy   of  order   to  be  served,   published,    or   consent   filed. 

I  1784.  Hearing   of   application. 

§  1785.  Who   may   be   examined   on   such   hearing. 

I  1786.  Costs  to  be  awarted,   to  whom. 

§  1787.  Order   of   sale,    to   specify    what. 

§  1788.  Bond    before    selling. 

§  1789.  All   proceedings    for   sales   of   property    by   guardians   to   conform 

to   chapter   seven   of   this   title. 

§  1790.  Limit   of   order   of   sale. 

5  1791.  Conditions    of    sale.s    of    real    estate    of    minor    heirs.     Bond    and 

mortgage   to   be   given   for   deferred   payments. 

§  1792.  Court   may   order  the   Investment  of  money  of  the   ward. 

§  1777.  May  sell  property  in  certain  cases.  When  the 
Income  of  an  estate  under  guardianship  is  insufficient  to 
maintain  the  ward  and  his  family,  or  to  maintain  and 
educate  the  ward  when  a  minor,  his  gnardian  may  sell  his 
real  or  personal  estate,  or  mortgage  the  real  estate  for 
that  purpose,  upon  obtaining  an  order  therefor.  En. 
March  11,  1872.     Am'd.   1900-1,  84. 

Cal.  Rep.  Cit.  83,  350;  83,  356;  83,  357;  120,  428;  134, 
116. 

Power  of  guardian — to  sell  property:    Ante,  sec.   1768. 

§  1778.  Sale  of  real  estate  to  be  made  upon  order  of 
court.  When  it  appears  to  the  satisfaction  of  the  court, 
upon  the  petition  of  the  guardian,  that  for  the  benefit  of 
his  ward  his  real  estate,  or  some  part  thereof,  should  be 
sold,  and  the  proceeds  thereof  put  out  at  interest,  or  in- 
vested in  some  productive  stock,  or  in  the  improvement  or 
security  of  any  other  real  estate  of  the  ward,  his  guardian 
may  sell  the  same  for  such  purpose,  upon  obtaining  an 
order  therefor.     En.   March   11,   1872. 

Cal.  Rep.  Cit.     83,  356;   83,  357;    120,  428. 

Order  for  sale  of  properly:  Ante,  sec.  1768. 

§  1779.  Application  of  proceeds  of  sales.  If  the  estate 
is  sold  for  the  purposes  mentioned  in  this  article,  the  guar- 
dian must  apply  the  proceeds  of  the  sale  to  such  purposes, 
as  far  as  necessary,  and  put  out  the  residue,  if  any,  on 
interest,  or  invest  it  in  the  best  manner  in  his  power,  until 
the  capital  is  wanted  for  the  maintenance  of  the  ward  and 
his  family,  or  the  education  of  his  children,  or  for  the  edu- 
cation of  the  ward  when  a  minor,  in  which  case  the 
capital  may  be  used  for  that  purpose,  as  far  as  may  be  nec- 
essary, in  like  manner  as  if  it  had  been  pereonal  estate  of 
the  ward.     En.  March  11,  1872. 

§  1780.  Investment  of  proceeds  of  sales.  If  the  estate  is 
sold  for  the  purpose  of  putting  out  or  investing  the  pro- 
ceeds, the  guardian   must  make  the   investment  according 


§§  17S1-17S4  GUARDIAN    AND    WARD.  «TO 

to  his  best  judgment,  or  in  pursuance  of  any  order  that 
may  be  made  by  the  court.  En.  March  11,  1872.  Am'd. 
1880,  G8. 

§  1781.  Order  for  sale,  how  obtained.  To  obtain  an  or- 
der for  such  sale,  the  guardian  must  present  to  the  court 
in  which  he  was  appointed  guardian  a  verified  petition 
therefor,  setting  forth  the  condition  of  the  estate  of  his 
ward,  and  the  facts  and  circumstances  on  which  the  peti- 
tion is  founded,  tending  to  show  the  necessity  or  expedi- 
ency of  a  sale.     En.  March  11,  1872.     Am'd.  1880,  G9. 

Cal.  Rep.  Cit.  83.  346;  83,  350;  83,  355;  83,  356;  83,  3o7; 
120,  424. 

§  1782.  Notice  to  next  of  kin,  how  given.  It  it  appear  to 
the  court,  or  a  .iudge  thereof,  from  the  petition,  that  it  is 
necessary  or  would  be  beneficial  to  the  ward  that  the  real 
estate,  or  some  part  of  it,  should  be  sold,  or  that  the  real 
and  personal  estate  should  be  sold,  the  court  must  there- 
upon make  an  order  directing  the  next  of  kin  of  the  ward, 
and  all  persons  interested  in  the  estate,  to  appear  before 
the  court,  at  a  time  and  place  therein  specified,  not  less 
than  four  nor  more  than  eight  weeks  from  the  time  ol 
making  such  order,  to  show  cause  why  an  order  should  not 
be  granted  for  the  sale  of  such  estate.  If  it  appear  that  it 
is  necessary  or  would  be  beneficial  to  the  ward  to  sell  the 
personal  estate,  or  some  part  of  it,  the  court  must  order  the 
sale  to  be  made.     En.  March  11,  1872.     Am'd.  1880,  69. 

Cal.  Rep.  Cit.     97,   363. 

§  1783.  Copy  of  order  to  be  served,  published,  or  con- 
sent filed.  A  copy  of  the  order  must  be  personally  served 
on  the  next  of  kin  of  the  ward,  and  on  all  persons  inter- 
ested in  the  estate,  at  least  fourteen  days  before  the  hear- 
ing of  the  petition,  or  must  be  published  at  least  once  a 
week  for  three  successive  weeks  in  a  newspaper  printed  in 
the  county,  or  if  there  be  none  printed  in  the  county,  then 
in  such  newspaper  as  may  be  specified  by  the  court  in  the 
order.  If  written  consent  to  making  the  order  of  sale  is 
subscribed  by  all  persons  interested  therein,  and  the  next 
of  kin,  notice  need  not  be  served  or  published.  En.  March 
11,   1872.     Am'd.    1880,    G9. 

Cal.  Rep.  Cit.     97,  363;   120,  425. 

Notice:  Compare   ante,    sec.    1539. 

§  1784.  Hearing  of  application.  The  court,  at  the  time 
ftnd  place  appointed   in  the  order,   or   such  other   time  to 


en  GUARDIAN   AND    "WARD.  §§  1785-1789 

which  the  hearing  is  postponed,  upon  proof  of  the  service 
or  publication  of  the  order,  must  hear  and  examine  the 
proofs  and  allegations  of  the  petitioner,  and  of  the  next  of 
kin,  and  of  all  other  persons  interested  in  the  estate  who 
oppose  the  application.  En.  March  11,  1872.  Am'd.  188U, 
69. 

Cal.  Rep.-  Cit.     97,  363. 

Compare:  Ante,    sec.    1540. 

§   1785.     Who  may  be  examined  on  such  hearing.    On  the 

hearing,  the  guardian  may  be  examined  on  oath,  and  wit- 
nesses may  be  produced  and  examined  by  either  party, 
and  process  to  compel  their  attendance  and  testimony  may 
be  issued  by  the  court,  in  the  same  manner  and  with  like 
effect  as  in  other  cases  provided  for  in  this  title.  En.  March 
11,  1872.     Am'd.  1880,  69. 

Compelling  attendance  and  testimony  of  witnesses:  Ante, 
sec.  1305;  post,  1985  et  seq. 

§  1786.  Costs  to  be  awarded,  to  whom.  If  any  person 
appears  and  objects  to  the  granting  of  any  order  prayed 
for  under  the  provisions  of  this  article,  and  it  appears  to 
the  court  that  either  the  petition  or  the  objection  thereto 
is  sustained,  the  court  may,  in  granting  or  refusing  the 
order,  award  costs  to  the  party  prevailing,  and  enforce  the 
payment  thereof.     En.    March    11,    1872. 

§  1737.  Order  of  sale,  to  specify  what.  If,  after  a  full 
examination,  it  appears  necessary,  or  for  the  benefit  of 
the  ward,  that  his  real  estate,  or  some  part  thereof,  should 
be  sold,  the  court  may  grant  an  order  therefor,  specifying 
therein  the  causes  or  reasons  why  thie  sale  is  necessary  or 
beneficial^  and  may,  if  the  same  has  been  prayed  for  in  the 
petition,  order  such  sale  to  be  made  either  at  public  or 
private  sale.    En.   March  11,  18/2. 

§  1788.  Bond  before  selling.  Every  guardian  authorized 
to  sell  real  estate  must,  before  the  sale,  give  bond  to  the 
ward,  with  sufficient  surety,  to  be  approved  by  the  court,  or 
a  judge  thereof,  with  condition  to  sell  the  same  in  the 
manner,  and  to  account  for  the  proceeds  of  the  sale  as 
provided  for  in  this  chapter,  and  chapter  seven  of  this  title. 
En.  March  11,  1872.     Am'd.  1880,  69. 

Cal.  Rep.  Cit.     83,  357. 

Bond  on  sale  of  realty:   Ante,  sec.   1389. 

§  1789.  All  proceedings  for  sales  of  property  by  guar- 
dians to   conform   to   chapter  seven   of  this  title.     All  the 


§1  1790-1792  GUARDIAN    AND    WARD.  672 

proceedings  under  petition  of  guardians  for  sales  of  prop- 
erty of  their  wards,  giving  notice,  and  the  hearing  of  such 
petitions,  granting  or  refusing  the  order  of  sale,  directing 
the  sale  to  be  made  at  public  or  private  sale,  reselling  the 
same  property,  return  of  sale,  and  application  for  confirma- 
tion thereof,  notice  and  hearing  of  such  application,  making 
orders  rejecting  or  confirming  sales  and  reports  of  sales, 
ordering  and  making  conveyances  of  property  sold,  ac- 
counting and  the  settlement  of  accounts,  must  be  had  and 
made  as  required  by  the  provisions  of  this  title  concerning 
estates  of  decedents,  unless  otherwise  specially  provided 
in  this  chapter.     En.   March  11,  1872. 

Cal.  Rep.  Cit.  52,  637;  55,  142;  83,  355;  109,  254;  115,  205; 
120,   425. 

Settlement  of  accounts  after  letters  revoked:  Ante,  sec. 
1629. 

§  1790.  Limit  of  order  of  sale.  No  order  of  sale, 
granted  in  pursuance  of  this  article,  continues  in  force 
more  than  one  year  after  granting  the  same,  without  a 
sale  being  had.     En.  March  11,  1872. 

§,  1791.  Conditions  of  sales  of  real  estate  of  minor  heirs. 
Bond  and  mortgage  to  be  given  for  deferred  payments.  All 
sales  of  real  estate  of  wards  must  be  for  cash,  or  for  part 
cash  and  part  deferred  payments,  the  credit  in  no  case  to 
exceed  three  years  from  date  of  sale,  as  in  the  discretion 
of  the  court  is  most  beneficial  to  the  ward.  Guardians 
making  sales  must  demand  and  receive  from  the  pur- 
chasers, in  case  of  deferred  payments,  notes,  and  a  mort- 
gage on  the  real  estate  sold,  with  such  additional  security 
as  the  court  deems  necessary  and  sufficient  to  .secure  the 
prompt  payment  of  the  amounts  so  deferred,  and  the  in- 
terest thereon.     En.  March   11,  1872.     Am'd,  1880,  70. 

Cal.   Rep.   Cit.     120,    425. 

§  1792.  Court  may  order  the  investment  of  money  of  the 
ward.  The  court,  on  the  application  of  a  guardian,  or  any 
person  interested  in  the  estate  of  any  ward,  after  such 
notice  to  persons  interested  therein  as  the  court  shall 
direct,  may  authorize  and  require  the  guardian  to  invest 
the  proceeds  of  sales  and  any  other  of  his  ward's  money  in 
his  hands,  in  real  estate,  or  in  any  other  manner  most  to 
the  interest  of  all  concerned  therein,  and  the  court  may 
make  such  other  orders  and  give  such  directions  as  are 
needful  for  the   management,   investment,   and   disposition 


e73  GUARDIAN    AND    WARD.  5§  1793-n'J5 

of  the  estate  and    effects,    as    circumstances   require.     En. 
March  11,  1872.     Am'd.    1880,    70. 

Cal.  Rep.  Cit.       55,  141;   117,  646;   121,  472;  133,  389;   133, 
390. 

ARTICLE    V. 

NONRESIDENT    GUARDIANS    AND    WARD. 

§  1793.  Guardians    of    nonresident    persons. 

§  1794.  Powers  and   duties   of  guardians  appointed  under  prect'ding  sec- 
tion. 

§  1795.  Sucli    guardians   to   give   bonds. 

§  179fi.  To   what   guardianship   shall   extend. 

§  1797.  Rfmoval    of    nonresident    ward's    property. 

§  1708.  Proceedings  on   such  removal. 

§  1799.  Discharge   of  person   in   possession. 

§  1793.  Guardians  of  nonresident  persons.  When  a  per- 
son liable  to  be  put  unler  guardianship,  according  to  the 
provisions  of  this  chapter,  resides  without  this  state  and 
has  estate  therein,  any  friend  of  such  person,  or  any  one 
interested  in  his  estate,  in  expectancy  or  otherwise,  may 
apply  to  the  superior  court  of  any  county  in  which  there  is 
any  estate  of  such  absent  person,  for  the  appointment  of  a 
guardian,  and  if,  after  notice  given  to  all  interested,  in 
such  manner  as  such  court  orders  by  publication  or  other- 
wise, and  a  full  hearing  and  examination,  it  appears  proper, 
a  guardian  for  such  absent  person  may  be  appointed.  En. 
March  11,  1872.     Am'd.  1880,  70. 

Cal.  Rep.  Cit.     Subd.  1—67,  93.     Subd.  4—67,  93. 

Foreign  guardian:    Sec.  1913. 

Guardian,  appearance  by,  etc.:  Ante,  sees.  372,  373,  1722, 
1759,   1769. 

Judge  may  appoint  guardians  and  issue  letters  of  guard- 
ianship at  chambers:   Sec.  166. 

§  1794.  Powers  and  duties  of  guardians  appointed  under 
preceding  section.  Every  guardian,  appointed  under  the 
preceding  section,  has  the  same  powers  and  performs  the 
same  duties,  with  respect  to  the  estate  of  the  ward  found 
within  this  state,  and  with  respect  to  the  person  of  the 
ward,  if  he  shall  come  to  reside  therein,  as  are  prescribed 
with  respect  to  any  other  guardian  appointed  under  this 
chapter.     En.   March   11,   1872. 

§  1795.  Such  guardians  to  give  bonds.  Every  guardian 
must  give  bond  to  the  ward,  in  the  manner  and  with  the 
like  conditions  as  hereinbefore  provided  for  other  guard- 
ians, except  that  the  provisions  respecting  the  inventory, 
the  disposal  of  the  estate  and  effects,  and  the  account  to 

Code  Civil  Proc— 43. 


§§   1796-1798  GUARDIAN    AND   WARD.  tU 

be  rendered  by  the  guardian,  must  be  confined  to  such 
estate  and  effects  as  come  to  his  hands  in  this  state.  En. 
March  11,  1872. 

Bond,  etc.:   Ante,  sec.  1754. 

§  1796.  To  what  guardianship  shall  extend.  The  guard- 
ianship which  is  first  lawfully  granted  to  any  person 
residing"  without  this  state  extends  to  all  the  estate  of  the 
ward  within  this  state,  and  excludes  the  jurisdiction  of 
the  court  of  every  other  county.  En.  March  11,  1872. 
Am'd.  1880,  70. 

§  1797.  Removal  of  nonresident  ward's  property.  When 
the  guardian  and  ward  are  both  nonrc^sidents,  and  the  ward 
is  entitled  to  property  in  this  state,  which  may  be  removed 
to  another  slate  or  foreign  country  without  conflict  with 
any  restriction  or  limitation  thereupon,  or  impairing  the 
right  of  the  ward  thereto,  such  property  may  be  removed 
to  the  state  or  foreign  country  of  the  residence  of  the 
ward,  upon  the  application  of  the  guardian  to  the  superior 
court  of  the  county  in  which  the  estate  of  the  ward,  or  the 
principal  part  thereof,  is  situated.  En.  March  11,  1872. 
Am'd.  1880,  70. 

§  1798.  Proceedings  on  such  removal.  The  application 
must  be  made  upon  ten  days'  notice  to  the  resident  exec- 
utor, administrator,  or  guardian,  if  there  be  such,  and  upon 
such  application  the  nonresident  guardian  must  produce 
and  file  a  certificate,  under  the  hand  of  the  clerk  and  seal 
of  the  court,  from  which  his  appointment  was  derived, 
showing: 

1.  A  transcript  of  the  record  of  his  appointment. 

2.  That  he  has  entered  upon  the  discharge  of  his  duties. 

3.  That  he  is  entitled,  by  the  laws  of  the  state  of  his 
appointment,  to  the  possession  of  the  estate  of  the  ward; 
or,  must  produce  and  file  a  certificate,  under  the  hand  and 
seal  of  the  clerk  of  the  court  having  jurisdiction  in  the 
country  of  his  residence,  of  the  estates  of  persons  under 
guardianship,  or  of  the  highest  court  of  such  country,  at- 
tested by  a  minister,  consul,  or  vice-consul  of  the  United 
States,  resident  in  such  country,  that,  by  the  laws  of  such 
country,  the  applicant  is  entitled  to  the  custody  of  the 
estate  of  his  ward,  without  the  appointment  of  any  court. 
Upon  such  application,  unless  good  cause  to  the  contrary 
is  shown,  the  court  must  make  an  order  gi'anting  to  such 
guardian  leave  to  take  and  remove  the  property  of  his 
ward  to  the  state  or  place  of  his  residence,  which  is  author- 


675  GUARDIAN     AND    W  AKD.  §§   1799-180H 

ity  toTiim  to  sue  for  iuvl  rycoivc  Tro  same  in  his  own  name, 
for  the  use  and  bs^ncAt  of  iiia  v> iird.  En.  March  11,  1872. 
Am'd.  1S73-4,  378;   1880,  71. 

§  1799.  Discharce  cf  person  in  possession.  Such  order 
is  a  discharge  of  the  executor,  administrator,  local  guard- 
Ian,  or  other  person  in  whose  possession  the  property 
may  be  at  the  time  the  order  is  made,  on  filing  with  the 
clerk  of  the  court  a  receipt  therefor  of  a  foreign  guardian 
of  sr.ch  absent  ward,  and  transmitting  a  duplicate  receipt, 
or  a  certified  copy  of  such  receipt,  to  the  court  from  which 
such  nonresident  guardian  received  his  appointment.  En, 
March  11,  1872.    Am'd.  1880,  71;  1895,  28. 


ARTICLE  VI. 

GENERAL   AND    MISCELLANEOUS    PROVISIONS. 

§  1800.  E.xamlnatlon  of  persons  suspected  of  defrauding  wards  or  con- 
cealing property. 

§  1801.  Removal   and   resignation    of  guardian,    and   surrender   of   estate. 

§  1802.  Guardianship,    how   terminated. 

§  1S03.  New    bond,    when    required. 

§  1S04.  Guardian's   bond   to   be   filed.    Action   on. 

§  1805.  Limitation   of    actions    on    guardian's   bond. 

§  IS06.  I^iniitatlon    of   actions    for    the    recovery   of    property    sold. 

§  1807.  More   than    one   guardian    of   a   person   may   be   appointed. 

§  1808.  Orcier    appointing    guardian,    how    entered. 

§  1809.  Provisions  of  section  ten  hundred  and  fifty-seven  apply  to 
guardians. 

§  1810.  Guardian    decreed    to  make   conveyance   for   Incompetent. 

§  1800.  Examination  of  persons  suspected  of  defrauding 
wards  or  concealing  property.  Upon  complaint  made  to 
him  by  any  guardian,  ward,  creditor,  or  other  person  in- 
terested in  the  estate  or  having  a  prospective  interest 
therein  as  heir  or  otherwise,  against  anyone  suspected  of 
having  concealed,  embezzled,  or  conveyed  away  any  of  the 
money,  goods,  or  effects,  or  an  instrument  in  writing  be- 
longing to  the  ward  or  to  his  estate,  the  superior  court,  or  a 
judge  thereof,  may  cite  such  suspected  person  to  appear 
before  such  court,  and  may  examine  and  proceed  with  him 
on  such  charge  in  the  manner  provided  in  this  title  with 
respect  to  persons  suspected  of  and  jpharged  with  conceal- 
ing or  embezzling  the  effects  of  a  decedent.  En.  March 
11,  1872.     Am'd.  1880,  71. 

Cal.  Rep.  Cit.     94,  349;    133,  136. 

Embezzlement  of  property  of  estate:  Ante,  sees.  1458 
et  seq. 


1801-1805  GUARDIAN    AND    WARD.  «79 

§  1801.  Removal  and  resignation  of  guardian,  and  sur- 
render of  estate.  When  a  guardian,  appointed  either  by 
the  testator  or  a  court,  becomes  insane  or  otherwise  inca- 
pable of  discharging  his  trust  or  unsuitable  therefor,  or 
has  wasted  or  mismanaged  the  estate,  or  failed  for  thirty 
days  to  render  an  account  or  make  a  return,  the  superior 
court  may,  upon  such  notice  to  the  guardian  as  the  court 
may  require,  remove  him  and  compel  him  to  surrender  the 
estate  of  the  ward  to  the  person  found  to  be  lawfully 
entitled  thereto.  Every  guardian  may  resign  when  it 
appears  proper  to  allow  the  same;  and  upon  the  resigna- 
tion or  removal  of  a  guardian,  as  herein  provided,  the 
court  may  appoint  another  in  the  place  of  the  guardian 
who  resigned  or  was  removed.  En.  March  11,  1872.  Am'd. 
1880,  71. 

Cal.  Rep.  Cit.  66,  241;  66,  242;  74,  425;  128,  219;  143, 
229. 

§  1802.  Guardianship,  how  terminated.  The  marriage 
of  a  minor  ward  terminates  the  guardianship  of  the  person 
of  such  ward,  but  not  the  estate;  and  the  guardian  of  an 
Insane  or  other  person  may  be  discharged  by  the  court, 
when  it  appears,  on  the  application  of  the  ward  or  other- 
wise, that  the  guardianship  is  no  longer  necessary.  En. 
March  11,  1872.     Am'd.  1880,  72. 

Cal.  Rep.  Cit.     143,  229. 

§  1803.  New  bond,  when  required.  The  court  may  re- 
quire a  new  bond  to  be  given  by  a  guardian  whenever  such 
court  deems  it  necessary,  and  may  discharge  the  existing 
sureties  from  further  liability,  after  due  notice  given  as 
such  court  may  direct,  when  It  shall  appear  that  no  injury 
can  result  therefrom  to  those  interested  in  the  estate.  En. 
-March  11,  1872.     Am'd.  1880,  72. 

§  1804.  Guardian's  bond  to  be  filed.  Action  on.  Every 
bond  given  by  a  guardian  must  be  filed  and  preserved  in 
the  office  of  the  clerk  of  the  superior  court  of  the  county, 
and  in  case  of  a  breach  of  a  condition  thereof,  may  be 
prosecuted  for  the  use  and  benefit  of  the  ward,  or  of  any 
person  interested  in  the  estate.  En.  March  11,  1872.  Am'd. 
1880,  72. 

Suit  on  bond,  party  beneficially  interested:  Ante,  sec. 
367. 

§  1805.  Limitation  of  actions  on  guardian's  bond.  No 
action  can  be  maintained  against  the  sureties  on  any  bond 
given  by  a  guardian,  unless  it  be  commenced  within  three 


677  GUARDIAN    AND    WARD.  §§  1806-lSlO 

years  from  the  discharge  or  removal  of  the  guardian;  but 
if,  at  the  time  of  such  discharge,  the  person  entitled  to 
bring  such  action  is  under  any  legal  disability  to  sue,  the 
action  may  be  commenced  at  any  time  within  three  years 
after  such  disability  is  removed.  En.  March  11,  1872. 
Cal.  Rep.  Cit.  121,  474;  14H,  222;  143,  223;  143,  228; 
143,  229;   143,  230;   143,  233-   147,  61G. 

§  1806.  Limitation  of  actions  for  the  recovery  of  prop- 
erty sold.  No  action  for  the  recovery  of  any  estate  sold  by 
a  guardian  can  be  maintained  by  the  ward,  or  by  any  per- 
son claiming  under  him,  unless  it  is  commenced  within 
three  years  next  after  the  termination  of  the  guardianship, 
or,  when  a  legal  disability  to  sue  exists  by  reason  of  minor- 
ity or  otherwise,  at  the  time  when  the  cause  of  action 
accrues,  within  three  years  next  after  the  removal  thereof. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.     66,  111;   70,  373;  93,  107;   118,  392. 

§  1807.  More  than  one  guardian  of  a  person  may  be 
appointed.  The  court,  in  its  discretion,  whenever  neces- 
sary, may  appoint  more  than  one  guardian  of  any  person 
subject  to  guardianship,  who  must  give  bond  and  be  gov- 
erned and  liable  in  all  respects  as  a  sole  guardian.  En. 
March  11,  1872. 

§  1808.  Order  appointing  guardian,  how  entered.  Any 
order  appointing  a  guardian,  must  be  entered  as  and  be- 
come a  decree  of  the  court.  The  provisions  of  this  title 
relative  to  the  estates  of  decedents,  so  far  as  they  relate 
to  the  practice  in  the  superior  court,  apply  to  proceedings 
under  this  chapter.     En.  March  11,  1872      Am'd.  1880,  72. 

Cal.  Rep.  Cit.     83,  355;    109,  254;   143,  228;    143,  234. 

Chambers,  power  at:   Ante,  sees.  166,  176. 

§  1809.  Provisions  of  section  ten  hundred  and  fifty-seven 
apply  to  guardians.  The  provisions  of  section  ten  hundred 
and  fifty-seven  are  hereby  declared  to  apply  to  guardians 
appointed  by  the  court,  and  to  the  bonds  taken  or  to  be 
taken  from  such  guardians,  and  to  the  sureties  on  such 
bonds.     En.  March  11,  1872. 

§  1810.  Guardian  decreed  to  make  conveyance  for  in- 
competent. When  a  person  who  is  bound  by  a  contract  in 
writing  to  convey  any  real  estate  shall  afterwards  and 
before  making  the  conveyance  become  and  be  adjudged  to 
be  an  incompetent  person,  the  court  may  make  a  decree 
authorizing  and  directing  his  guardian  to  convey  such  real 


5§  1811-1S13  SOLE    TRADEna.  SW 

estate  to  the  person  entitled  thereto.  Su€h  decree  may  be 
made  under  the  provisions  of  sections  fifteen  hundred  and 
ninety-seven  to  sixteen  hundred  and  seven,  both  inclusive, 
of  this  code,  all  of  which  provisions  are  hereby  incorpo- 
rated in  this  section;  the  word  incompetent  being  substi- 
tuted for  the  word  deceased  or  decedent  and  the  word 
guardian  being  substituted  for  the  word  administrator  or 
executor,  respectively,  wherever  sai-d  words  occur.  En. 
Stats.  1903,  1C6. 

TITLE  XII. 

OF    SOLE    TRADERS. 

§  1811.  Who   may   become   sole   traders. 

§  1812.  Notice,    how  given   and   what   to  contain. 

§  1813.  Petition,    what   to   contain    when    filed. 

§  1814.  May    have    five    hundred    dollars    of    community    or    husband's 

property. 

§  1815.  Who  may  oppose  it,   and  how. 

§  1S16.  Trial   or  hearing. 

§  1817.  Decree,   what   it  must  be. 

§  1818.  Oath,    copy  of  order  to  be  recorde'd. 

§  1819.  Rights   and   liabilities  of  sole   traders. 

§  1820.  Sole    trader    must    maintain    her    children. 

§  1821.  Husband    of   sole   trader   not   liable    for   debta. 

§  1811.  Who  may  become  sole  traders.  A  married 
woman  may  become  a  sole  trader  by  the  judgment  of  the 
superior  court  of  the  county  in  which  she  has  resided  for 
six  months  next  preceding  the  application.  En.  March  11, 
1872.     Am'd.  1881,  10. 

§  1812.  Notice,  how  given  and  what  to  contain.  A  per- 
son intending  to  make  application  to  become  a  sole  trader 
must  publish  notice  of  such  intention  in  a  newspaper  pub- 
lished in  the  county,  or,  if  none,  then  in  a  newspaper 
published  in  an  adjoining  county,  once  a  week  for  four 
successive  weeks.  The  notice  must  specify  the  day  upon 
which  application  will  be  made,  the  nature  and  place  of 
the  business  proposed  to  be  conducted  by  her,  and  the 
name  of  her  husband.  En.  March  11,  1872.  Am'd.  1881, 
10. 

§  1813.  Petition,  what  to  contain  when  filed.  Ten  days 
prior  to  the  day  named  in  the  notice,  the  applicant  must 
file  a  verified  petition  setting  forth: 

1.  That  the  application  is  made  in  good  faith,  to  enable 
the  applicant  to  support  herself,  or  herself  and  others 
dependent  upon  her,  giving  their  names  and   relation; 

2.  The  fact  of  insufficient  support  from  her  husband,  and 
the  causes  thereof,  if  known; 


679  SOLE    TRADERS.  i§  1814-1S18 

3.  Any  other  grounds  of  application  which  are  good 
causes  for  a  divorce,  with  the  reason  why  a  divorce  is  not 
sought;   and 

4.  The  nature  of  the  business  proposed  to  be  conducted, 
and  the  capital  to  be  invested  therein,  if  any,  and  the 
sources  from  which  it  is  derived.     En.  March  11,  1872. 

g,  1814.  May  have  five  hundred  dollars  of  community  or 
husband's  property.  The  applicant  may  invest  in  the  busi- 
ness proposed  to  be  conducted,  a  sum  derived  from  the 
community  property  or  of  the  separate  property  of  the 
husband,  not  exceeding  five  hundred  dollars.  En.  March 
11,  1872. 

Cal.  Rep.  Clt.     63,  428. 

§  1815.  Who  may  oppose  It,  and  how.  Any  creditor  of 
the  husband  may  oppose  the  application,  by  filing  in  the 
court  (prior  to  the  day  named  in  the  notice)  a  written  op- 
position verified,  containing  either: 

1.  A  specific  denial  of  the  truth  of  any  material  allega- 
tion of  the  petition;  or  setting  forth, 

2.  That  the  application  is  made  for  the  purpose  of  de- 
frauding the  opponent;  or 

3.  That  the  application  is  made  to  prevent,  or  will  pre- 
vent him  from  collecting  his  debt.    En.  March  11,  1872. 

§  1816.  Trial  or  hearing.  On  the  day  named  in  the 
notice,  or  on  such  other  day  to  which  the  hearing  may  be 
postponed  by  the  court,  the  applicant  must  make  proof 
of  publication  of  the  notice  hereinbefore  required,  and  the 
issues  of  fact  joined,  if  any,  must  be  tried  as  In  other 
cases;  if  no  Issues  are  joined,  the  court  must  hear  the 
proofs  of  the  applicant  and  find  the  facts  in  accordance 
therewith.     En.  March  11,  1872. 

§  1817.  Decree,  what  It  must  be.  If  the  facts  found 
sustain  the  petition,  the  court  must  render  judgment  au- 
thorizing the  applicant  to  carry  on  in  her  own  name  and 
on  her  own  account  the  business  specifiea  in  the  notice 
and  petition.    En.  March  11,  1872. 

§  1818.  Oath,  copy  of  order  to  be  recorded.  The  sole 
trader  must  make  and  file  with  the  clerk  of  the  court  an 
aflidavit,  in  the  following  form: 

"I,  A.  B.,  do,  in  the  presence  of  Almighty  God,  solemnly 
swear  that   this   application   was   made   in  good   faith,  for 


§§   1819-1821  SOI^E    TRADERS.  «80 

the  purpose  of  enabling  me  to  support  myself  (and  any 
dependent,  such  as  husband,  parent,  sister,  child,  or  tho 
like,  naming  them,  if  any),  and  not  with  any  view  to  de- 
fraud, delay,  or  hinder  any  creditor  or  creditors  of  my 
husband;  and  that  of  the  moneys  so  to  be  used  by  me  In 
business,  not  more  than  five  hundred  dollars  have  come 
either  directly  or  Indirectly  from  my  husband.  So  help 
me  God." 

A  certified  copy  of  the  decree,  with  this  oath  Indorsed 
thereon,  must  be  recorded  in  the  office  of  the  recorder  of 
the  county  where  the  biiFiness  is  to  be  carried  on,  in  a 
book  to  be  kept  for  such  purpose.     En.  March  11,  1872. 

§  1819.  Rights  and  liabilities  of  sole  traders.  When  the 
judgment  is  made  and  entered,  and  a  copy  thereof,  with 
the  affidavit  provided  for  in  section  one  thousand  eight 
hundred  and  eighteen,  duly  recorded,  the  person  therein 
named  is  entitled  to  carry  on  the  business  specified,  in  her 
own  name,  and  the  property,  revenues,  moneys,  and  credits 
so  by  her  invested,  and  the  profits  thereof,  belong  ex- 
clusively to  her,  and  are  not  liable  for  any  debts  of  her 
husband,  and  she,  thereafter,  has  all  the  privileges  of,  and 
is  liable  to  all  legal  processes  provided  for  debtors  and 
creditors,  and  may  sue  and  be  sued  alone  without  being 
joined  with  her  husband;  provided,  however,  that  she 
shall  not  be  at  liberty  to  carry  on  said  business  In  any 
other  county  than  that  named  In  the  notice  provided  for 
in  section  one  thousand  eight  hundred  and  twelve,  until 
she  has  recorded  in  sucli  other  county  a  copy  of  said  judg- 
ment and  affidavit.  En.  March  11,  1872.  Am'd.  1875-6, 
105. 

Sue  and  be  sued  alone:  Ante,  sec.  370. 

Husband  and  wife  parties  to  actions:  Ante,  sees.  370, 
871. 

§  1820.  Sole  trader  must  maintain  her  children.  A  mar- 
ried woman  who  is  adjudged  a  sole  trader  is  responsible 
and  liable  for  the  maintenance  of  her  minor  children.  En. 
March  11,  1872. 

§  1821.     Husband  of  sole  trader  not  liable  for  debts.    The 

husband  of  a  sole  trader  is  not  liable  for  any  debts  con- 
tracted by  her  in  the  course  oi:  her  sole  trader's  business, 
unless  contracted  upon  his  written  consent.  En.  March, 
11.  1872. 


FKOCEEDlNGd    IN    INSOLVENCY,  g  1S22 


TITLE  XTII. 

OF  PROCEEDINGS  IN   INSOLVENCY. 

§  1822.     Statutes    In    relation    to.    continued    in    force. 

§  1822.  Statutes  In  relation  to,,  continued  in  force.  Noth- 
ing in  this  code  affects  any  of  the  provisions  of  "an  act  for 
the  relief  of  insolvent  debtors  and  protection  of  creditors," 
approved  May  4,  1852,  or  of  the  acts  amendatory  thereof, 
approved  respectively  March  12.  1858,  April  27,  18G0,  and 
April  27,  1863;  but  such  acts  are  recognized  as  continuing 
in  force  notwithstanding  the  provisions  of  this  code.  En. 
March  11,  1872. 


PART  IV. 

OF  EVIDENCE. 

General   Definitions    and    Divisions,    §§    1823-1839. 
Title  I.     Of  General    Principles,    §§    1844-1870. 

II.     Kinds  and  Degrees  of  Evidence,   §§   1875-1978. 

III.  Of  the  Production  of  Evidence,   §§   1981-2054. 

IV.  Effect  of  Evidence,  §  2061. 

V.     Of  the  Rights  and  Duties  of  Witnesses,   §§   2064- 
2070. 
VI.    Evidence   in   Particular   Cases,   and   Miscellaneous 
and  General    Provisions,    §§    2070-2104. 


OF  EVIDENCE. 

GENERAL   DEFINITIONS   AND    DIVISIONS. 

§  1823.  Definition   of   evidence. 

§  1824.  Definition  of  proof. 

§  1825.  Defxr.ition  of  law  of  evidence 

§  1S26.  The    degree    of    certainty   required    to   establish   facts. 

§  1S27.  Pour   kinds   of   eviuence   specified. 

§  1S28.  Several    degrees   of   evidence    specified. 

§  1829.  Primary   evidence   defined. 

§  1830.  Secondary    evidence   defined. 

§  1S31.  Direct   evidence   defined. 

§  1832.  Indirect    evrdence    defined. 

§  1833.  Prima   facie   evidence   defined. 

§  18.34.  Partial   evidence   defined. 

§  1835.  Satisfactory   evidence   defined. 

§  18.36.  Indisjiensable    evidence    defined. 

§  1S37.  Conclusive   evidence   dcfinc-.l. 

§  1838.  Cumulative   evidence   defined. 

§  1839.  Corroborative    evidence   defined. 

§  1823.  Definition  of  evidence.  Judicial  evidence  is  the 
means,  sanctioned  by  law,  of  ascertaining  in  a  judicial 
proceeding  the  truth  respecting  a  question  of  fact.  En. 
March   11,   1872. 

Evidence,  law  of:  Post,  sec.  1825;  kinds-  of:  Post,  sec. 
1827;  degrees  of:  Post,  sees.  1S2S  et  seq.;  relevancy  of: 
Post.  sees.  18G3,  1870;  production  of:  Post,  sec.  1825,  subd 
3;  value  and  effect  of:  Post,  sec.   1825,  subd.  5. 

(C82) 


883  EVIDENCE.  S§  1824-1827 

§  1824.  Definition  of  proof.  Proof  is  the  effect  of  evi- 
dence, the  establishment  of  a  fact  by  evidence.  En.  March 
11,  1872. 

Proof,  degree  required:  Post,  sec.  182G;  order  of:  Ante, 
sec.  607,  post,  sec.  2042;  extent  of:  Post,  sees.  1867,  ISoJ; 
limits  of:  Post,  sees.  1868,  1870;  burden  of:  Post,  sees. 
1869,  1981. 

§  1825.  Definition  of  law  of  evidence.  The  law  of  evi- 
dence, which  is  the  subject  of  this  part  of  the  code,  is  a 
collection  of  general   rules   established   by  law: 

1.  For  declaring  what  is  to  be  taken  as  true  without 
proof; 

2.  For  declaring  the  presumpt'ons  of  law,  both  those 
which  are  disputable  and  those  which  are  conclusive;  and, 

3.  For  the  production   of   legal   evidence; 

4.  For  the  exclusion  of  whatever  is  not  legal; 

5.  For  determining  in  certain  cases,  the  value  and  effect 
of  evidence.     En.  March   11,  1872. 

Subd.  2.  Presumptions:  Post,  sees.  1959,  lCGl-1963,  and 
notes. 

Subd.    3.  Production    of   evidence:   Post,    sees.    1981-2054. 

Subd.  4.  Exclusion  of  evidence:   Post,  sees.  1867,  1868. 

Subd.   5.  Value  and   effect  of  evidence:  Post,   sec.   2061. 

§  1826.  The  degree  of  certainty  required  to  establish 
facts.  The  law  does  not  require  demonstrations;  that  is, 
such  a  degree  of  proof  as,  excluding  possibility  of  error, 
produces  absolute  certainty;  because  such  proof  is  rarely 
possible.  Moral  certainty  only  is  required,  or  that  degree 
of  proof  which  produces  conviction  in  an  unprejudiced 
mind.     En.   March  11,   1872. 

Cal.  Rep.  Cit.  80,  582;  80,  584;  80,  603;  130,  8;  130,  39; 
139,   395;    141,    549;    143,    398. 

Proof:  Ante,    sec.    1824, 

§  1827.  Four  kinds  of  evidence  specified.  There  are 
four    kinds    of    evidence: 

1.  The   knowledge   of   the   court; 

2.  The    testimony    of    witnesses; 

3.  Writings; 

4.  Other  material  objects  presented  to  the  senses.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     61,  404;  107,  209. 


§§  1828-1832  EVIDENCE.  684 

Subd.  1.  Knowledge   of   the   court:   Post,    sec.    1875. 

Subd.  2.  Witnesses:  Post,   sees.   1878-1884. 

Subd.  3.  Writings:   Post,  sees.  1887-1951. 

Subd.  4.  Other  material  objects:  Post,  sec.   1954. 

§  1828.  Several  degrees  of  evidence  specified.  There 
are   several   degrees   of   evidence: 

1.  Primary   and   secondary. 

2.  Direct   and    indirect. 

3.  Prima  facie,  partial,  satisfactory,  indispensable,  and 
conclusive.     En.  March  11,  1872.     Am'd.  1873-4,  379. 

§  1829.  Primary  evidence  defined.  Primary  evidence  is 
that  kind  of  evidence  which,  under  every  possible  circum- 
stance, affords  the  greatest  certainty  of  the  fact  in 
question.  Thus,  a  written  instrument  is  itself  the  best 
possible  evidence  of  Its  existence  and  contents.  En.  March 
II,   1872.     Am'd.    1873-4,    379. 

Cal.   Rep.   Git.     54,   557. 

§  1830.  Secondary  evidence  defined.  Secondary  evi- 
dence is  that  which  is  inferior  to  primary.  Thus,  a  copy 
of  an  instrument,  or  oral  evidence  of  its  contents,  is  second- 
ary evidence  of  the  instrument  and  contents.  En.  March 
11,  1872.     Am'd.  1873-4,  379. 

Contents  of  a  writing,  evidence  of:  Post,  sees.  1855, 
1856. 

§  1831.  Direct  evidence  defined.  Direct  evidence  is 
that  which  proves  the  fact  in  dispute  directly,  without  an 
inference  or  presumption,  and  which  in  itself,  if  true,  con- 
clusively establishes  that  fact.  For  example:  If  the  fact 
in  dispute  be  an  agreement,  the  evidence  of  a  witness  who 
was  present,  and  witnessed  the  making  of  it,  is  direct.  En. 
March  11,  1872. 

Cal.   Rep.   Cit.     143,   398. 

§  1832.  Indirect  evidence  defined.  Indirect  evidence  is 
that  which  tends  to  establish  the  fact  in  dispute  by  prov- 
ing another,  and  which,  though  true,  does  not  of  itself 
conclusively  establish  that  fact,  but  which  affords  an 
inference  or  presumption  of  its  existence.  Fot  example: 
a  witness  proves  an  admission  of  the  party  to  the  fact  in 


685  EVIDENCE.  §§  1833-1837 

dispute.     This  proves  a  fact,  from  which  the  fact  in  dis- 
pute is  inferred.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     106,  193;    141,  63;    141,  398;    146,  121. 

Indirect  evidence:  Post,  sees.  1957-19G3. 

§  1833.  Prima  facie  evidence  defined.  Prima  facie  evi- 
dence is  that  which  suffices  for  the  proof  of  a  particular 
fact,  until  contradicted  and  overcome  by  other  evidence. 
For  example:  the  certificate  of  a  recording  officer  is  prima 
facie  evidence  of  a  record,  but  it  may  afterward  be  re- 
jected upon  proof  that  there  is  no  such  record.  En.  March 
11,  1872.     Am'd.  1873-4,  379. 

Cal.  Rep.  Cit.     70,  570;    75,  449;    83,  272. 

Disputable  presumption:  Post,  sec.  1963. 

§  1834.  Partial  evidence  defined.  Partial  evidence  is 
that  which  goes  to  establish  a  detached  fact,  in  a  series 
tending  to  the  fact  in  dispute.  It  may  be  recei"\»ed,  subject 
to  be  rejected  as  incompetent,  unless  connected  with  the 
fact  in  dispute  by  proof  of  other  facts.  For  example: 
on  an  issue  of  title  to  real  property,  evidence  of  th.e  con- 
tinued possession  of  a  remote  occupant  is  partial,  for  it  is 
of  a  detached  fact,  which  may  or  may  not  be  afterwards 
connected  with  the  fact  in  dispute.     En.  March  11,  1872. 

Connected  with  the  fact  in  dispute:    Post,  sec.  1868. 

§  1835.     Satisfactory    evidence    defined.     That    evidence 

is    deemed    satisfactory    which    ordinarily    produces    moral 

certainty    or    conviction     in   an   unprejudiced   mind.     Such 

evidence  alone  will  justify  a  verdict.     Evidence    less    than 

this  is  denominated   slight  evidence.     En.   March  11,  1872. 

Cal.    Rep.    Cit.     72,  527;     76,  108;     79,  406;     80,  132;     80, 

584;    94,  350;     94,   412;     105,   522;     132,   366;     132,   620; 

133,  166;    136,  414;    139,  395;    140,  399;    141,  549. 

Satisfactory  evidence,  to  justify  verdict:  Post,  sec.  2061, 
subd.  5. 

§  1836.  Indispensable  evidence  defined.  Indispensable 
evidence  is  that  without  which  a  particular  fact  cannot  be 
proved.     En.  March  11,  1872. 

Indispensable  evidence:   Sees.  1967-1974. 

§  1837.  Conclusive  evidence  defined.  Conclusive  or  un- 
answerable evidence  is  that  which  the  law  does  not  permit 


§§  1S38-1844  GENERAL    PUINCIPLES.  «!« 

to  be  contradicted.  For  example,  the  record  of  a  court  of 
competent  jurisdiction  cannot  be  contradicted  by  the  par- 
ties to  it.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     83,  272. 

Conclusive  evidence:   Post,  sees.  1908,  1962,  1978. 

§  1838.  Cumulative  evidence  defined.  Cumulative  evi- 
dence is  additional  evidence  of  the  same  character  to  the 
same  point.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     92,  208. 

§  1839.  Corroborative  evidence  defined.  Corroborative 
evidence  is  additional  evidence  of  a  different  character,  to 
the  same  point.     En.  March  11,  1872. 

Cal.  Rep.  Cit.    Ill,  14. 


TITLE  I. 

OF  THE  GEISTERAL  PRINCIPLES  OF  EVIDENCE. 

§  1S44.  One   witness   suflicicnt   to   prove   a   fact. 

§  1845.  Testimony   confined   to  personal   knowledge. 

§  1S46.  Testimony    to   be    in    presence    of   persons    affected. 

§  1847.  Witness   presumed   to   speak   the   truth. 

§  1848.  One   person   not  affected   by   acts  of  another. 

§  1849.  Declarations    of    predecessor    in    title    evidence. 

§  1850.  Declarations  which  are  a  part  of  the  transaction. 

§  1851.  Evidence   relating   to   third   person. 

§  1852.  Declaration    of    decedent    evidence    of   pedigree. 

§  1853.  Declaration    of    decedent    evidence    against    his    successor    In    In- 
terest. 

§  1854.  When    part   of   a   transaction   proved,    the   whole   is   admissible. 

§  1S55.  Contents   of   writing,    how   proved. 

§  1856.  An   agreement  reduced   to  writing  deemed   the   whole. 

§  1857.  Construction  of   language   relates   to   place   where   used. 

§  1858.  Construction    of   statutes   an-J    instruments,    general    rule. 

§  1859.  The    Intention    of   the   legislature    or   parties. 

§  lSi;0.  The    circumstances    to    be    considered. 

§  IStil.  Terms    to    be    constiued    in    their    general    acceptation. 

§  1862.  Written    words   ccntrol   those   printed   in   a   blank   form. 

§  1863.  Persons   skilled    may   testify    to   decipher   characters. 

§  18G4.  Of    two    constructions,     which    preferred. 

§  1SC5.  A    written    instrument    construed    as    understood    by    parties. 

§  1SB6.  Construction    in    favor   of   natural    right   preferred. 

§  1S67.  Material   allegations   only    to   be    proved. 

§  1868.  Evidence    confined    to   mateilal    allegations. 

§  1869.  Affirmative   only   to   be    proved. 

I  1870.  Facts   which  may   be   proved   on   trial. 

§  1844.     One    witness    sufficient    to    prove    a    fact.     The 
direct  evidence  of  one  witness  who  is  entitled  to  full  credit 


687  GENERAL    miNCIPLES.  §§   lS45-lsn 

is  sufQcient  for  proof  of  any  fact,  except,  perjury  and  trea- 
son. En.  March  11,  1872. 
Cal.  Rep.  Cit.  62,  310;  125,  37. 
Witness,  definition;  Post,  sec.  1878;  v/itne.ss,  compe- 
tency: Post,  sees.  1879  et  seq. ;  two  witnesses  for  lost  or  de- 
stroyed will:  Ante,  sec.  1339;  perjury  and  treason,  more 
than  one  witness:    Post,  sec.   1063. 

§  1845.  Testimony  confined  to  persona!  knoY/lsdge.  A 
witness  can  testify  of  those  facts  only  v/hich  he  knows  of 
his  own  knowledge;  that  is,  which  are  derived  from  his 
own  perceptions,  except  in  those  few  express  cases  in 
which  his  opinions  or  inferenoes,  or  the  declarations  of 
others,  are  admissible.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     85,  584;    142,  111;     145,  152. 

Opinions,  inferences,  declarations:   See  sec.  1S70. 

§  1846.  Testimony  to  be  in  presence  of  persons  affected. 
A  v/itness  can  be  heard  only  upon  oath  or  a"irraation, 
and  upon  a  trial  he  can  be  heard  only  in  the  presence  and 
subject  to  the  examination  of  all  the  parties,  if  they  choose 
to  attend  and  examine.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     87.  113. 

Oath  or  affirmation,  administration  of:  Post,  sees.  2093- 
2097. 

Examination   of  witnesses:    Post,  sees.  2042-2054. 

§  1847.  Witness  presumed  to  speak  the  truth.  A  wit- 
ness is  presumed  to  speak  the  truth.  This  presumption, 
however,  may  be  repelled  by  the  manner  in  which  he  testi- 
fies, by  the  character  of  his  testiniony,  or  by  evidence  af- 
fectius  his  character  lor  truth,  honesty,  or  integrity,  or 
his  motives,  or  by  contradictory  evidence;  and  the  jury 
are  the  exclusive  judges  of  his  credibility.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.  50,  235;  60,  413;  65,  551;  86,  35;  106, 
93;  121,  669;  123,  409;  133,  10;  134,  540;  141,  612; 
143,   127;     143,   640. 

Evidence  of   good   character:    Post,   sec.   2053. 

Impeachment  of  witness:    Post,  sec.  2052. 

Value  of  evidence:    Post,  sec.   20G1. 

Presumption  repelled,  m-aaner  of  testifying:  Post,  sec. 
2061,     subd.     2;     character    of   testimony:    Post,    sec.    2061, 


S§  1848-18S2  GENERAL,    PRINCIPLES.  888 

Bubd.   3;     impeaching  credit:    Post,   sees.    2049,   2051,   2052; 
contradictory   evidence:    Post,   sees.   2049,   2051. 
Jury  exclusive  judges  of  credibility:    Post,  sec.  2061. 

§  1848.     One  person  not  affected  by  acts  of  another.    The 

rights  of  a  party  cannot  be  prejudiced  by  the  declaration, 
act,  or  omission  of  another,  except  by  virtue  of  a  particu- 
lar relation  between  them;  therefore,  proceedings  against 
one  cannot  affect  another.  En.  March  11,  1872.  Am'd. 
1873-4,  380. 

Cal.    Rep.   Cit.     146,   529. 

Books,  entries  in:   Post,  sec.  1946. 

Declaration,  etc.,  of  another,  when  admissible:  Sees. 
1849-1853;  declarations  of  decedents:  Post,  sec.  1870; 
I)artner,  agent,  etc.:   Post,  sec.  1870,  subd.  5. 

§   1849.     Declarations    of    predecessor    in    title    evidence. 

Where,   however,   one   derives   title   to   real   property   from 

another,    the   declaration,   act,    or   omission    of   the    latter, 

while    holding    the    title,    in    relation  to  the  property,  is 

evidence  against  the  former.     En.  March  11,  1872. 

Cal.    Rep.    Cit.     50,  479;     52,   349;     60,  503;     60,  510;     60, 

511;    63,  16;     70,  313;     70,  315;     70,  318;     79,  413;    93, 

96;     106,  384;     109,  670;     120,  126;     121,  52;    121,  594; 

145,  774. 

§  1850.  Declarations  which  are  a  part  of  the  transac- 
tion. Where,  also,  the  declaration,  act,  or  omission  forms 
part  of  a  transaction,  which  is  itself  the  fact  in  dispute, 
or  evidence  of  that  fact,  such  declaration,  act,  or  omission 
is  evidence,  as  part  of  the  transaction.  En.  March  11, 
1872. 

Cal.    Rep.    Cit.     58,    26;      58,    158;       62,     310;      63,     16; 
79,  311;       99,  73;     106,  384;     124,  659;    133,  136;     139, 
431;     140,  456;    145,  690;     145,  774. 
Declarations  before  others:    Sec.   1870,   subd.   3;    writing^ 
evidence  to  explain:    Sec.  1860. 

§  1851.  Evidence  relating  to  third  person.  And  where 
the  question  in  dispute  between  the  parties  is  the  obliga- 
tion or  duty  of  a  third  person,  whatever  would  be  the  evi- 
dence for  or  against  such  person  is  prima  facie  evidence 
between  the  parties.  En.  March  11,  1872.  Am'd.  1873-4,, 
S80. 

Cal,  Rep.  Cit.      76,  5;    145,  774. 

§  1852.  Declaration  of  decedent  evidence  of  pedigree. 
The  declaration,  act,  or  omission  of  a  member  of  a  fam- 


689  GEXERAL,    PRINCiri.ES.  §§  18a3-l&.5 

ily,  who  is  a  decedent,  or  out  of  the  jurisdiction,  is  also 
admissible  as  evidence  of  corhmon  reputation,  in  cases 
where,  on  questions  of  pedigree,  such  reputation  is  admis- 
sible.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     124,  661;     128,   554;     135,  386;     135,  388; 

140,  459;    145,  774. 

Declaration  of  decedent:   Post,  sec.  1870,  subd.  4. 
Common  reputation  on  questions  of  pedigree,  etc.:   Post, 
sec.  1870,  subd.  11. 

§  1853.  Declaration  of  decedent  evidence  against  his 
successor  in  interest.  The  declaration,  act,  or  omission  of 
a  decedent,  having  sufficient  knowledge  of  the  subject, 
against  his  pecuniary  interest,  is  also  admissible  as  evi- 
dence to  that  extent  against  his  successor  in  interest.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     121,  594;     126,  146;     136,  424;     140,  456; 

141,  60;    145,  774. 

Decedent's  declaration  against  interest:  Post,  sec.  1870, 
.<!iibd.  4:  p.nt.ries  and  other  writinss:   Post.  sec.  1946. 

C.  C.  P.,  1906,  new. 

§  1855a.  When  it  is  desired  to  prove  the  contents  of  any 
public  record  or  document  lost  or  destroyed  by  conflagration 
or  other  public  calamity  and  after  proof  of  such  loss  or 
destruction,  there  is  offered  in  proof  of  such  contents,  any 
abstract  of  title  issued  and  certified  to  as  correct  by  any 
person,  firm  or  corporation  engaged  in  the  business  of  pre- 
paring and  making  abstracts  of  title  issued  and  certified  to 
as  correct  by  any  such  person,  firm  or  corporation,  the  same 
may  be  admitted  in  evidence  on  proof  that  the  same  was 
prepared  and  made  in  the  ordinary  course  of  business  prior 
to  such  loss  or  destruction,  and  without  further  proof  by 
the  person  who  actually  made  the  copies,  extracts,  notes  or 
memoranda  of  records,  constituting  such  abstract  of  title 
that  they  were  correctly  taken  from  the  original  record  or 
document;  provided,  nevertheless,  that  whenever  and  as 
soon  as  said  action  is  set  for  trial  any  party  so  desiring 
to  use  said  evidence  shall  notify  all  other  parties  to  the 
action  who  have  appeared  therein,  of  his  intention  to  use 
the  same  at  the  trial  of  said  action,  and  shall  give  all  such 
other  parties  a  reasonable  opportunity  to  inspect  the  same 
and  to  take  copies  thereof.     [In  effect  June  10,  1906.] 


5§  ISe-lSSJ  GENRRAb    rUINCIPLES.  ««i 

Bubd.   3;     impeac)iing  credit:    Post,   sees.    2049,   2051,   2052; 
contradictory  evidence:    Post,   sees.   2049,  2051. 

Jury  exclusive  judges  of  credibility:    Post,  sec.  2061. 

§  1848.  One  person  not  affected  by  acts  of  another.  The 
rights  of  a  party  cannot  be  prejudiced  by  the  declaration, 
act,  or  omission  of  another,  except  by  virtue  of  a  particu- 
lar relation  between  them;  therefore,  proceedings  against 
one  cannot  affect  another.  En.  March  11,  1872.  Am'd. 
1873-4,  380. 

Cal.    Rep.    Cit.     146,    529. 

Books,  entries  in:   Post,  sec.  1946. 

Declaration,  etc.,  of  another,  when  admissible;  Sees. 
1849-1853;  declarations  of  decedents:  Post,  sec.  1870; 
partner,  agent,  etc.:    Post,  sec.   1870,  subd.  5. 

§  1849.  Declarations  of  predecessor  in  title  evidence. 
Where,  however,  one  derives  title  to  real  property  from 
another,  the  declaration,  act,  or  omission  of  the  latter, 
while  holding  the  title,  in  relation  to  the  property,  is 
evidence  against  the  former.     En.  March  11,  1872. 

Cal.    Ren.    CiL    .^o    47fl-    m    -j^q-    -^^    •''"'■    


689  GENICUAL    PKlNCiri.ES.  §§   18j3-1S.>5 

ily,  who  is  a  decedent,  or  out  of  the  jurisdiction,  is  also 
admissible  as  evidence  of  common  reputation,  in  cases 
where,  on  questions  of  pedigree,  such  reputation  is  admis- 
Bible.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     124,  661;     128,   554;     135,  386;     135,  388; 

140,  459;    145,  774. 

Declaration  of  decedent:   Post,  sec.  1870,  subd.  4. 
Common  reputation  on  questions  of  pedigree,  etc.:   Post, 
sec.  1870,  subd.  11. 

§  1853.  Declaration  of  decedent  evidence  against  his 
successor  in  interest.  The  declaration,  act,  or  omission  of 
a  decedent,  having  sufhcienL  knowledge  of  the  subject, 
against  his  pecuniary  interest,  is  also  admissible  as  evi- 
dence to  that  extent  against  his  successor  in  interest.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     121,  594;     126,  146;     136,  424;     140,  4.56; 

141,  60;    145,  774. 

Decedent's  declaration  against  interest:  Post,  sec.  1870, 
subd.  4;  entries  and  other  writings:   Post,  sec.  1946. 

§  1854.  When  part  of  a  transaction  proved,  the  whole 
is  admissible.  When  part  of  an  act,  declaration,  con- 
versation, or  writing  is  given  in  evidence  by  one  party, 
the  whole  on  the  same  subject  may  be  inquired  into  by 
the  other;  when  a  letter  is  read,  the  answer  may  be  given; 
and  when  a  detached  act,  declaration,  conversation,  or 
writing  is  given  in  evidence,  any  other  act,  declaration, 
conversation,  or  writing,  which  is  necessary  to  make  it 
understood,  may  also  be  given  in  evidence.  En.  March 
11,  1872. 

Cal.  Rep.  CiL.  68,  14;  110,  418;  118,  135;  135,  82;  145, 
214. 

§  1855.  Contents  of  writing,  how  proved.  There  can  be 
no  evidence  of  the  contents  of  a  writing,  other  than  the 
writing  itself,  except  in  the  following  oases: 

1.  When  the  original  has  been  lost  or  destroyed;  in 
which  case  proof  of  the  loss  or  destruction  must  first  be 
made. 

2.  When  the  original  is  in  the  possession  of  the  party 
against  whom  the  evidence  is  offered,  and  he  fails  to  pro- 
duce it  after  reasonable  notice. 

3.  When  the  original  is  a  record  or  other  document  in 
the  custody  of  a  public  officer. 

Code  avll  Proc.— 44. 


I  1856  GENERA  I.    rniNCIPLES.  AN 

4.  When  the  original  has  been  recorded,  and  a  certified 
copy  of  the  record  is  made  evidence  by  this  code  or  other 
statute. 

5.  When  the  original  consists  of  uumorous  accounts  or 
other  documents,  which  cunnct  be  examined  in  court  with- 
out great  loss  of  lime,  and  the  evidence  sought  from  them 
is  only  the  general  result  of  the  whole. 

In  the  cases  mentioned  in  subdivisions  three  and  four,  a 
copy  of  the  original  or  of  the  record  must  be  produced;  in 
those  mentioned  in  subdivisions  one  and  two,  either  a  copy 
or  oral  evidence  of  the  contents.  En.  March  11,  1872. 
Am'd.  1873-4,  380. 

Cal.  Rep.  Cit.  51,201;  59,506;  65,373;  69,495;  70,16; 
89,  621;  89,  622;  113,  299;  124,  446.  Subd.  4—52, 
186;    59,  506.     Subd.  5—122,  497;    137,  176;    142,  189. 

Prao.  Act,  sec.  447.    En.  April  29,  1851. 

Contents  of  writing:   Post,  sees.  1937,  1969. 

Original  in  possession  of  opponent,  notice  to  produce: 
Post,  sees.  1938,  1939. 

Public  writings  generally:   Post,  sec.  1892-1926. 

Affidavits:   Post,  sees.  2009  et  seq. 

Subd.  4.  Certified  copies  of  records:  See  post,  sees. 
1919  et  seq. 

§  1S56.  An  agreement  reduced  to  writing  deemed  the 
whole.  When  the  terms  of  an  agreement  have  been  re- 
duced to  writing  by  the  parties,  it  is  to  be  considered  as 
containing  all  those  terms,  and  therefore  there  can  be 
between  the  parties  and  their  representatives,  or  succes- 
sors in  interest,  no  evidence  of  the  terms  of  the  agreement 
other  than  the  contents  of  the  writing,  except  in  the  follow- 
ing cases: 

1.  Where  a  misiake  or  imperfection  of  the  writing  is  put 
in  issue  by  the  pleading; 

2.  Where  the  validity  of  the  agreement  is  the  fact  in 
dispute. 

But  this  section  does  not  exclude  other  evidence  of  the 
circumstances  under  which  the  agreement  was  made,  or  to 
which  it  relates,  as  defined  in  section  eighteen  hundred 
and  sixty,  or  to  explain  an  extrinsic  ambiguity,  or  to  es- 
tablish illegality  or  fraud.  The  term  agreement  includes 
deeds  and  wills,  as  well  as  contracts  between  parties.  En. 
March  11,  1872. 


^■31  GENERAL    PRINCIPLES.  §§  1857-1859 

Cal.  Rep.  Cit.  48.99;  89,  C21;  95,570;  97,387;  104,109; 
104,  111;  104,  118;  104,  121;  112,  51;  117,  211; 
121,  520;  124,  446;  129,  375;  135,  29:  144,  691;  146, 
f)94;  147,  318;  147,  325;  147,  327.  Subd.  1—137,  75. 
Subd.  2—137,  100;   141,  228. 

Writing  supersedes  oral  negotiations:  Civ.  Code,  sec. 
11)25;  parol  evidence  to  vary  or  contradict  written  agree- 
ment: Civ.  Code,  sec.  1639;  fraud,  to  establisli:  See  Civ. 
Code,  sec.  1640;  mistake  or  imperfection,  to  correct:  See 
Civ.  Code,  sec.  1640;  revision  and  reformation  of  contracts 
for  fraud  or  mistake:  Civ.  Code,  sees.  3399-3402;  surround- 
ing circumstances  to  show:    Sec.  18G0. 

Recitals  in  document,  conclusiveness  of:  Sec.  1962, 
subd.  2. 

Usage,  etc:   Sec.  1870,  subd.  12. 

Consideration:   Sec.  1962,  subd.  2. 

Alterations  and  erasures:   Sec.  19S2. 

§  1857.  Construction  of  language  relates  to  place  where 
used.  The  language  of  a  writing  is  to  be  interpreted  ac- 
cording to  the  meaning  it  bears  in  the  place  of  its  execu- 
tion, unless  the  parties  have  reference  to  a  different  place. 
En.  March  11,  1872. 

Interpretation  of  contract,  lex  loci:   Civ.  Code,  sec.  1646. 

§  1858.  Construction  of  statutes  and  instruments,  gen- 
eral rule.  In  the  consti'uction  of  a  statute  or  instrument, 
the  office  of  the  judge  is  simply  to  ascertain  and  declare 
what  is  in  terms  or  in  substance  contained  therein,  not  to 
insert  what  has  been  omitted,  or  to  omit  what  has  been  in- 
serted; and  where  there  are  several  provisions  or  particu- 
lars, such  a  construction  is,  if  possible,  to  be  adopted  ae 
will  give  effect  to  all.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  65,  464;  74,  67;  107.  354;  108,  655;  110, 
396;    146,  696. 

Construction,  generally:  Post,  sec.  1859;  giving  effect 
to  all:  Civ.  Code,  sec.  1641. 

Interpretation  which  gives  effect  preferred:  Civ.  Code, 
sec.  3541. 

§  1859.     The  intention  of  the   legislature  or  parties.     Iq 

the  construction  of  a  statute,   the  intention  of  the  legis- 
lature, and  in  the  construction  of  the  instrument,  the  in- 


§!;  ISfiO-lseS  GKNKRAI-    PRTNriPI.ES.  W2 

tention  of  the  parties,  is  to  he  pursued  if  possible;  and 
wlien  a  gfrnoral  and  particular  provision  are  inconsistent, 
the  latter  is  i»aiaraount  to  the  former.  So  a  particular  in- 
tent will  control  a  general  one,  that  is  inconsistent  with 
it.     P:u.  March   U,  1872. 

Cal.  Rep.  Cit.     68,  489;    74,  67;    135,  180. 

Words  giving  joint  authority:  Sec.  15,  ante.  Construc- 
tion of  this  code:   Sees.  4-18,  ante. 

Statutes  in  derogation  of  common  law:   Ante,  sec.  4. 

§  1860.  The  circumstances  to  be  considered.  For  the 
proper  consi  ruction  of  an  instrument,  the  circumstances 
under  which  it  was  made,  including  the  situation  of  the 
subject  of  the  instrument,  and  of  the  parties  to  it,  may 
also  be  sliown,  so  that  the  judge  be  placed  in  the  position 
of  those  whor.e  language  he  is  to  interpret.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.  88,  553;  97,  387;  107,  600;  109,  226;  128, 
186;    137,100;    141,452;    147,462. 

Surrounding  cjicumstances  may  be  shown:  Civ.  Code, 
sec.  1647;  usage:  Post,  sec.  1870,  subd.  12;  descriptive  part 
of  coiiveyance:    Post,  sec.  2077. 

§  1861.  Terms  to  be  construed  in  their  general  accepta- 
tion. The  terms  of  a  writing  are  presumed  to  have  been 
used  in  their  primary  and  general  acceptation,  but  evidence 
is  nevertheless  admissible  that  they  have  a  local,  tech- 
nical, or  otherwise  peculiar  signification,  and  were  so  used 
and  under.5too(l  in  the  particular  instance,  in  which  case 
the  agreement  must  be  construed  accordingly.  En.  March 
11,   1872. 

Cal.  Rep.  Cit.     74,  67;  76,  279;  190,  226;  120,  631;  145,  84. 
Signification   of  term.s:   Compare   Civ.   Code,   sees.   1644, 
1645.     See,  also,  sec.  1870,  subd.  12,  post. 

§  1862.  Written  words  control  those  printed  in  a  blank 
form.  When  an  instrument  consists  partly  of  written 
words  and  partly  of  a  printed  form,  and  the  two  are  incon- 
sistent, the  former  controls  the  latter.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     135,  176;    135,  177. 

Compare  Civ.  Code,  sec.  1651. 

§  1863.  Persons  skilled  may  testify  to  decipher  char- 
acters.   When  the  characters  in  which  an  Instrument  is 


69S  GENERAL    PRINCIPLES.  §§  1864-18G7 

written  are  difficult  to  be  deciphered,  or  the  language  of 
th.^  instrument  is  not  understood  by  the  court,  the  evidence 
of  persons  skilled  in  deciphering  the  characters,  or  who 
understand  the  language,  is  admissible  to  declare  the 
citaracters  or  the  meaning  of  the  language.  En.  March  11, 
1872. 

Cal.  Rep.   Cit.     65,   626. 

See  post,  sec.  1870,  subds.  9,  10. 

§  1864.  Of  two  constructions,  which  preferred.  When 
the  terms  of  an  agreement  have  been  intended  in  a  dif- 
ferent sense  by  the  different  parties  to  it,  that  sense  Is  to 
prevail  against  either  party  in  which  he  supposed  the 
other  understood  it,  and  when  different  constructions  of  a 
provision  are  otherwise  equally  proper,  that  is  to  be  taken 
which  Is  most  favorable  to  the  party  in  whose  favor  the 
provision  was  made.     En.   March  11,  1872. 

Cal.  Rep.  Cit.     109,  228;    138,  586. 

Compare  Civ.  Code,  sees.  1649,  1654. 

§  1865.  A  written  instrument  construed  as  understood 
by  parties.  A  written  notice,  as  well  as  every  other  writ- 
ing, is  to  be  construed  according  to  the  ordinary  accepta- 
tion of  Its  terms.  Thus,  a  notice  to  the  drawers  or  in- 
dorsers  of  a  bill  of  exchange  or  promissory  note,  that  it 
has  been  protested  for  want  of  acceptance  or  payment, 
must  be  held  to  import  that  the  same  has  been  duly  pre- 
sented for  acceptance  or  payment,  and  the  same  refused, 
and  that  the  holder  looks  for  payment  to  the  person  to 
whom  the  notice  Is  given.     En.  March  11,  1872. 

Ordinary  acceptation:  Ante,  sec.  1861.  Compare  Civ. 
Code,  sec.  1644;  notice  of  dishonor:  Civ.  Code,  sec.  3143. 

§  1866.  Construction  in  favor  of  natural  right  preferred. 
When  a  statute  or  instrument  Is  equally  susceptible  of  two 
Interpretations,  one  in  favor  of  natural  right  and  the  other 
against  It,  the  former  Is  to  be  adopted.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.     91,  353;   96,  578. 

(  1867.  IVIaterial  allegations  only  to  be  proved.  None 
but  a  material  allegation  need  be  proved.  En.  March  11, 
1872. 

CJal.  Rep.  Cit.    187,  462. 


§J  lSfi8-1870  GKNKRAI.    PRINCIPLES.  «M 

Material  allegation,  defined:    Ante,  sec.  4G3;   not  contro- 
verted: Ante,  sec.  462. 
Material  evidence:   Post,  sec.  1868. 

§  1868.  Evidence  confined  to  material  allegations.  EvI- 
-dence  must  correspond  with  the  substance  of  the  material 
allegations,  and  be  relevant  to  the  question  in  dispute. 
Collateral  questions  must  therefore  be  avoided.  It  is, 
however,  within  the  discretion  of  the  court  to  permit 
Inquiry  into  a  collateral  fact,  when  such  fax^t  is  directly 
connected  with  the  question  in  dispute,  and  is  essential 
to  its  proper  determination,  or  when  it  affects  the  credibil- 
ity of  a  witness.     En.  March  11,  1872. 

Variance:    Ante,  sees.  469-471. 

Credibility  of  witness:  Ante,  sec.  1847;  post,  sec.  1870, 
subd.  16. 

Material:  Ante.  sec.  1867. 

§  1869.  Affirmative  only  to  be  proved.  Each  party  must 
prove  his  own  affirmative  allegations.  Evidence  need  not 
be  given  in  support  of  a  negative  allegation,  except  when 
such  negative  allegation  is  an  essential  part  of  the  state- 
ment of  the  right  or  title  on  which  the  cause  of  action  or 
defense  is  founded,  nor  even  in  such  case  when  the  allega- 
tion is  a  denial  of  the  existence  of  a  document,  the  custody 
of  which  belongs  to  the  opposite  party.  En.  March  11, 
1872. 

Cal.  Rep.  Clt.  92,  333;  94,  174;  94,  175;  136,  618;  137,  283  i 
140,  421;  140,  430;  140,  431;  140,  439;  140,  440;  145, 
460. 

Burden  of  proof:  Post,  sec.  1981. 

§  1870.  Facts  which  may  be  proved  on  trial.  In  con- 
formity with  the  preceding  provisions,  evidence  may  be 
given  upon  a  trial  of  the  following  facts: 

1.  The  precise  fact  in  dispute; 

2.  The  act,  declaration,  or  omission  of  a  party,  as  evi- 
dence against  such  party; 

3.  An  act  or  declaration  of  another,  in  the  presence  and 
within  the  observation  of  a  party,  and  his  conduct  in  rela- 
tion thereto; 

4.  The  act  or  declaration,  verbal  or  written,  of  a  de- 
ceased person  in  respect  to  the  relationship,  birth,  mar- 
riage, or  death  of  any  person  related  by  blood  or  marriage 


695  GENERAL    PRINCIPLES.  S  ""• 

to  such  deceased  person;  the  act  or  declaration  of  a  de- 
ceased person  done  or  made  against  his  interest  in  respect 
to  his  real  property;  and  also  in  criminal  actions,  the  act 
or  declaration  of  a  dying  person,  made  un-der  a  sense  of 
impending  death,  respecting  the  cause  of  his  death; 

5.  After  proof  of  a  partnership  or  agency,  the  act  or 
declaration  of  a  partner  or  agent  of  the  party,  within 
the  scope  of  the  partnership  or  agency,  and  during  its  ex- 
istence. The  same  rule  applies  to  the  act  or  declaration 
ot  a  joint  owner,  joint  debtor,  or  other  person  jointly  in- 
terested with  the  party; 

6.  After  proof  of  a  conspiracy,  the  act  or  declaration 
of  a  conspirator  against  his  co-conspirator,  and  relating  to 
the  conspiracy; 

7.  The  act,  declaration,  or  omission  forming  part  of  a 
transaction,  as  explained  in  section  eighteen  hundred  antl 
fifty; 

8.  The  testimony  of  a  witness  deceased,  or  out  of  the 
jurisdiction,  or  unable  to  testify,  given  in  a  former  action 
between  the  same  parties,  relating  to  the  same  matter; 

9.  The  opinion  of  a  witness  respecting  the  identity  or 
handwriting  of  a  person,  when  he  has  knowled-ge  of  the 
person  or  handwriting;  his  opinion  on  a  question  of  sci- 
ence, art,  or  trade,  when  he  is  skilled  therein; 

10.  The  opinion  of  a  subscribing  witness  to  a  writing, 
the  validity  of  which  is  in  dispute,  respecting  the  mental 
sanity  of  the  signer;  and  the  opinion  of  an  intimate  ac- 
quaintance respecting  the  mental  sanity  of  a  person,  the 
reason  for  the  opinion  being  given; 

11.  Common  reputation  existing  previous  to  the  con- 
troTersy,  respecting  facts  of  a  pu'blic  or  general  interest 
more  than  thirty  years  old,  and  in  cases  of  pedigree  and 
boundary; 

12.  Usage,  to  explain  the  true  character  of  an  act,  con- 
tract, or  instrument,  where  such  true  character  is  not 
otherwise  plain;  but  usage  is  never  admissible,  except  as 
an   instrument   of  interpretation; 

13.  Monuments  and  inscriptions  in  public  places,  as  evi- 
dence of  common  reputation;  and  entries  in  family  bibles, 
or  other  fam.ily  books  or  charts;  engravings  on  rings,  fam- 
ily portraits,  and  the  like,  as  evidence  of  pedigree; 

14.  The  contents  of  a  writing,  when  oral  evidence  there- 
of is  admissible; 


§   1875  KNOWLEDGE   OF   THE    COURT.  699 

15.  Any  other  facts  from  which  the  facts  in  issue  are 
piesunietl  or  are  logically  inferable; 

IC.  Such  facts  as  serve  to  show  the  credibility  of  a  wit- 
ness, as  explained  in  section  eighteen  hundred  and  forty- 
seven.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     124,  440;   135,  388;   147,  1G9.     Subd.  1—133. 
478.     C-Jbd.  2—78.  28G;   8G,  489;  95,  29G;  13G,  181;  145, 
234.     Subd.  3—125,  546;   134,  204;   136,  181.     Subd.  4— 
94,    599;    118.    519;    128.    554;    145,   234.     Subd.    5—103, 
406;    130,    255;    140,    G30.     Subd.    6—59.    352;    77,    502 
123,  408.     Subd.  7—79,  311.     Subd.  8—51,  583;  56,  599 
64,   22;     66,   672;     73,   608;     80,   85;    80,   254;     98,    131 
132,  203.     Subd.  9—54,  512;    55,  451;    91,   59;    134,  314 
136,  307.     Subd.  10—57,  568;   59,  394;   67,  446;   71,  352 
77,  149;    79,  384;   92,  565;   94,  414;   100,  583;   101,  345 
102,  036;  102.  037;  106.  349;  115,  257;  120,  14;  127,  596 
134,  12;  141.  595;  141,  .596;  142,  301;  143,  583.     Subd.  11 
—68,   574;    83.   242;    135.   388;    137.   303.     Subd.    12—99, 
372;   140,  597;   141,  735.     Subd.  13—118,  519.     Subd.  14 
—89,    622;     124,    446.     Subd.    15—139,    123;     143.    398. 
Subd.  16—107,  159. 

Offer  to  compromise:  Post,  sec.  2078;  confession  in  di- 
vorce suit:   Post,  sec.  2079. 

Subd.  7.     Res  gestae:   Ante,  sec.  1860. 

TITLE  II. 

OF  THE  KINDS  AND  DEGREES  OF  EVIDENCB. 

Chapter  I.  Knowledge  of  the  Court,  §  1875. 

II.  Witnesses,  §§  1878-1884. 

III.  Writings,  §§  1887-1951. 

IV.  Material     Objects     Presented     to     the     Senses, 

Other  Than  Writings,  §  1954. 
V.     Indirect   Evidence,     Influences    and     Presump- 
tions, §§  1957-1963. 
VI.     Indispensable  Evidence,  §§  1967-1974. 
VII.     Conclusive  and  Unanswerable  Evidence,  §  1978. 

CHAPTER  I. 

KNOWLEDGE    OF   THE    COURT. 

S  1S75.     Certain    facts   of    general    notoriety    assumed    to   be    true.     Speci- 
fication  of  such  facts. 

§  1875.  Certain  facts  of  general  notoriety  assumed  to  be 
true.  Specification  of  su<'i  facts.  Courts  take  judicial  no- 
tice of  the  following  facts: 

1.  The  true  signification  of  all  Ekig^lish  words  and 
phrases,  and  of  all  legal  expressions; 


697  WITNESSEa  S  18™ 

2.  Whatever    is   established    by    law; 

3.  Public  and  private  official  acts  of  the  legislative,  ex- 
ecutive, and  judicial  departments  of  this  state  and  of  the 
United    States; 

4.  The  seals  of  all  the  courts  of  this  state  and  of  the 
United   States; 

5.  The  accession  to  office  and  the  ofTicial  signatures  and 
seals  of  office  of  the  principal  officers  of  government  in  the 
legislative,  executive,  and  judicial  departments  of  this 
state   and   of  the   United   States; 

6.  The  existence,  title,  national  flag,  and  seal  of  every 
state  or  sovereign  recognized  by  the  executive  pov/er  ol 
the  United  States; 

7.  The  seals  of  courts  of  admiralty  and  maritime  juris- 
diction, and  of  notaries  public; 

8.  The  laws  of  nature,  the  measure  of  time,  and  the 
geographical  divisions  and  political  history  ol  the  world. 

In  all  these  cases  the  court  may  resort  for  its  aid  to 
appropriate  books  or  documents  of  reference.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     52,  188;   64,  91;   66,  412;   78,  262;   92,  28U; 

101,  283;    103,   329;    104,   290;    105,   574;    146,   608;    147, 

524.  Subd.   1—122,  519.     Subd.  2—59.  55;   88,  105;   99, 

579;  108,  158;  114,  581;  115,  447;   117,  623;  130,  6;   131, 

225.  Subd.  3—79,  697;  86,  211;   113,  256;  113,  257;  114, 

581;  117,  623.     Subd.  8—61,  404;  86,  211;  113,  625;  137, 
216. 

CHAPTER  II. 

WITNESSES. 

I  1878.  Witnesses    defined. 

S  1879.  All    persons   capable   of   perceptions    and    communication    may   be 

witnesses. 

S  1880.  Persons    who    cannot    testify. 

I  1881.  Persons   In   certai.i   relations   to   parties  prohibited. 

S  1882.  When    privileged    persons    mubt    testify.     (Repealed.) 

{1883.  Judge   or  a   juror   may   be   witness. 

1884.  When   an   interpreter   to   be   sworn. 

§  1878.  Witnesses  defined.  A  witness  is  a  person  whose 
declaration  under  oath  is  received  as  evidence  for  any  pur- 
pose, whether  such  declaration  be  made  on  oral  examina- 
tion or  by  deposition  or  affidavit.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     82,  464;  92,  485;  132,  201;  145,  723. 

Compare:  Post,  sec.  2002. 


§3  1879,  1880  WITNESSES.  69S 

Oral  examination:  Ante,  sec.  1846;  general  rales  of:  Fost. 
sees.  2042  et  seq. 

Deposition:  Post,  sees.  2019-2038. 

Affidavit:  Post,  sees.  2009-2015. 

§  1879.  All  persons  capable  of  perceptions  and  communi- 
cation may  be  witnesses.  All  persons,  without  exception, 
otherwise  than  is  specified  in  the  next  two  sections,  who, 
having  organs  of  sense,  can  perceive,  and  perceiving,  can 
make  known  their  perceptions  to  others,  may  be  witnesses. 
Therefore,  neither  parties  nor  other  persons  who  have  an 
interest  in  the  event  of  an  action  or  proceeding  are  ex- 
cluded; nor  those  who  have  been  convicted  of  crime;  nor 
persons  on  account  of  their  opinions  on  matters  of  re- 
ligious belief;  although,  in  every  case,  the  credibility  of 
the  witness  may  be  drawn  in  question,  as  provided  in  sec- 
tion eighteen  hundred  and  forty-seven.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.  47,  126;  60,  413;  64,  270;  C4,  271;  70,  54; 
71.  378;  71,  550;  72,  458;  82,  464;  104,  4SG;  106,  92; 
122,  658;  135,  172;  137,  302;  139,  472;  141,  570;  141,  5Y2. 

Prac.  Act,  sec.  391.     En.  April  29,  1851.     Am'd.  18G3,  701. 

Cal.  Rep.  Cit.     24,  423. 

Prac.  Act,  sec.  392.  En.  April  29,  1851.  Am'd.  1854,  66; 
1863,  701. 

Cal.  Rep.  Cit.     4,  16;  6,  195;  6,  358;  9,  70;  14,  471;  17,  004; 

26,  35;   26,  148. 
Persons  incompetent  as  witnesses:  Post,  sees.  18S0-1881. 

§  1880.  Persons  who  cannot  testify.  The  following  per- 
sons cannot  be  witnesses: 

1.  Those  who  are  of  unsound  mind  at  the  time  of  their 
production    for   examination. 

2.  Children  under  ten  years  of  age,  who  appear  Incap- 
able of  receiving  just  impressions  of  the  facts  respecting 
which  they  are  examined,  or  of  relating  them  truly. 

3.  Parties  or  assignors  of  parties  to  an  action  or  pro- 
ceeding or  persons  in  who.5e  behalf  an  action  or  proceeding 
Is  prosecuted  against  an  executor  or  administrator,  upon 
a  claim  or  demand  against  the  estate  of  a  deceased  person, 
as  to  any  matter  or  fact  occurring  before  the  death  of  such 
fleoeased  person.  En.  March  11,  1872.  Am'd.  1873-4,  381; 
ISSO.  112. 


«99  WITNESSES.  {  18SI 

Cal.  Rep.  Cit.  50,  422;  51,  108;  51,  lOJ;  51.  619;  52,  337; 
52,  57C;  64,  270;  64,  271;  67,  90;  67,  91;  67,  92;  67,  152; 
70,  54;  71,  378;  76,  107;  77,  413;  82,  464;  82,  583;  95, 
162;  95,  170;  9C,  487;  96,  488;  98,  549;  106,  93;  106,  94; 
111,  469;  122,  057;  124,  30C;  124,  367;  136,  424;  13S,  96; 
141,  572;  145,  523;  146,  554.  Subd.  2—136,  522;  142, 
151;  142,  642.  Subd.  3—85,  97;  88,  43;  122,  656;  12:5, 
239;  123,  265;  124,  450;  133.  97;  133,  98;  135,  169;  135, 
170;  136,  9;  137,  402;  138,  070;  141,  570;  142,  642;  143, 
290;   145.  598. 

Prac.  Act,  sec.  394.  En.  April  29,  1851.  Am'd.  1854,  66; 
1863,  60. 

Cal.  Rep.  Cit.     4,  40o;   26,  148;  27,  411. 

§  1881.  Persons  in  certain  relations  to  parties  prohib- 
ited. There  are  particular  relations  in  which  it  is  the  pol- 
icy of  the  law  to  encourage  confidence  and  to  preserve 
it  inviolate;  therefore,  a  person  cannot  be  examined  as  a 
witness  in  the  following  cases: 

1.  A  husband  cannot  be  examined  for  or  against  his 
wife  without  her  consent;  nor  a  wife  for  or  against  her 
husband  without  his  consent;  nor  can  either,  during  the 
marriage  or  afterward,  be,  without  the  consent  of  the  other, 
examined  as  to  any  communication  made  by  one  to  the 
other  during  the  marriage;  but  this  exception  does  not 
apply  to  a  civil  action  or  proceeding  by  one  against  rtie 
other,  nor  to  a  criminal  action  or  proceeding  for  a  crime 
committed  by  one  against  the  other. 

2.  An  attorney  cannot,  without  the  consent  of  his  client, 
be  examined  as  to  any  communication  made  by  the  client 
to  him,  or  his  advice  given  thereon  in  the  course  of  pro- 
fessional employment;  nor  can  an  attorney's  secretary, 
stenographer,  or  clerk  be  examined,  without  the  consent 
of  his  employer,  concerning  any  fact  the  knowledge  of 
which  has  been  acquired  in  such  capacity. 

3.  A  clergyman  or  priest  cannot,  without  the  consent  ot 
the  person  making  the  confession,  be  examined  as  to  any 
confession  made  to  him  in  his  professional  character  in  the 
course  of  discipline  enjoined  by  the  church  to  which  he  be- 
longs. 

4.  A  licensed  physician  or  surgeon  cannot,  without  the 
consent  of  his  patient,  be  examined  in  a  civil  action  as  to 
any  information  acquired  in  attending  the  patient,  which 
was  necessary  to  enable  him  to  prescribe  or  act  for  the 
patient. 


5§  1882-1884  WITNESSES.  TOO 

5.  A  public  officer  cannot  be  examined  as  to  communi- 
cations made  to  him  in  official  confidence,  when  the  public 
interests  would  suffer  by  the  disclosure.  En.  March  11, 
1872.     Am'd.   1893,   301. 

Cal.  Rep.  Cit.  53,  427;  54,  51G;  C4,  257;  C4,  258;  64,  271; 
70,  54;  79,  G77;  82,  4G4;  83.  140;  92.  485;  94.  226; 
97,  40;  100,  587;  101.  510;  111,  299;  115.  520;  116,  300; 
147,  234.  Subd.  1—117,  039;  120,  481;  122,  658. 
Subd.  2—100,  347;  110.  254;  113,  472;  130,  90.  Hubd. 
4—93,  71;  97,  45;  100,  394;  100,  400;  100.  91;  106,  93; 
109.  069;  109.  670;  110,  256;  116,  166;  166;  644;  117, 
639;  119,  445;  126,  0;  132,  187;  132,  396;  136,  260; 
140,  338. 

Prac.  Act,  sec.  395.  En.  April  29,  1851.     Am'd.  1863,  771. 

Cal.   Rep.   Cit.     30,  453. 

Prac.  Act,  sec.  396.  En.  April  29,  1851. 

Prac.  Act,  sec.  397.  En.  April  29,  1851, 

Prac.  Act,  sec.  398.  En.  April  29.  1851.     Am'd.  1861,  305. 

Prac.  Act,  sec.  399.  En.  April  29,  1851. 

Husband  and  wife:  See  Pen.  Code,  sec.  1322. 

§  1882.  When  privileged  persons  must  testify.  (Re- 
pealed.)    En.    March    11,    1872.     Rep.    1875-6,    105. 

§  1883.  Judge  or  a  juror  nnay  be  witness.  The  judge 
himself  or  any  juror  may  be  called  as  a  witness  by  either 
party;  but  in  such  case  it  is  in  the  discretion  of  the  court 
or  judge  to  order  the  trial  to  be  postponed  or  suspended, 
and  to  take  place  before  another  judge  or  jury.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     64,  460;   102,  9. 

Prac.  Act,  sec.  400.     En.  April  29,  1851. 

Justice  as  witness,  transfer  of  cause:   Ante,  sec.  833. 

§  1884.  When  an  interpreter  to  be  sworn.  When  a  wit- 
ness does  not  understand  and  speak  the  English  language, 
an  interpreter  must  be  sworn  to  interpret  for  him.  Any 
person,  a  resident  of  the  proper  county,  may  be  sum- 
moned by  any  court  or  judge  to  appear  before  such  court 
or  judge  to  act  as  interpreter  in  any  action  or  proceeding. 
The  summons  must  be  served  and  returned  in  like  manner 
as  a  subpoena.    Any  person  so  summoned,  who  fails  to  at- 


701  WRITINGS.  §§  lSS7-l«;a 

tend   at  the  time  and   place    named   in  the    summons,  is 
guilty  of  a  contempt.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  108,  11;    132.  201. 

Prac.  Act,  sec.  401.     En.  April  29,  1851.    Am'd.  1863,  495. 
Subpoena:   Post,  sees.  1985  et  seq. 
Contempt:   Ante,  sees.  1209  et  seq. 

Acts    authorizing    appointment    of    Italian    interpreter: 
Bee  post,  Appendix,  title  Interpreters. 


CHAPTER  IIL 

WRITINGS. 

Article  1.     Writings    in    Goncral,    §§    1SS7-1889. 
II      Piililic    WritinFTS,    §§    1S92-1926.       . 
lU.     Private   Writings,    §§    1929-1951. 


ARTICLE  I. 

WRITINGS     IN     GENERAL,. 

§  18S7.     Writings,    public    and    private. 
§  18SS.     I>iiblic   writings   defined. 
§  1883.     All   otliers   private. 

§  1887.  Writings,  public  and  private.  "Writings  are  of 
two  kinds: 

1.  Public;  and, 

2.  Private.     En.   March  11,   1872. 

Cal.  Rep.  Cit.     Ill,  149;     119,  171. 

§  1888.     Public    writings    defined.     Public    writings    are: 

1.  The  written  acts  or  records  of  the  acts  of  the  sov- 
ereign authority,  of  official  bodies  and  tribunals,  and  of 
public  officers,  legislative,  judicial,  and  executive,  whether 
of  this  state,  of  the  United  States,  of  a  sister  state,  or  of 
a  foreign  country; 

2.  Public  records,  kept  in  this  state,  of  private  writings. 
En.  March  11,   1872. 

Cal.  Rep.  Cit.     49,  212;    52,  186;    59.  506;  114,  550. 

§  1889.  All  others  private.  All  other  writings  are  pri- 
vate.    En.  March  11,  1S72. 

Cal.  Rep.  Cit.     114,  550. 


§  1892  WRITINGS.  702 

ARTICLE  II. 

PUBLIC    WRITINGS. 

9  1892.  E^rerj'   citizen   entitled   to   inspect   and   copy   public   writings. 

§  1893.  Public  officers  bound   to  give  copies. 

§  1894.  Four   Itinds   of   public    writings. 

I  1895.  Laws,   written  or  unwritten. 

§  1896.  Written    laws  defined. 

§  1897.  Constitution   and   statutes. 

§  1898.  Public    and   private    statutes    defined. 

I  1899.  Unwritten   law   defined. 

I  1900.  Books  containing  laws  presumed  to  be  correct. 

§  1901.  Evidence    of    foreign    law. 

I  1902.  Other  evidence  of  laws  of  other  states. 

§  1903.  Recitals  in   statutes,    how   far  evidence. 

§  1904.  Judicial  record   defined. 

§  1905.  Record,    how    authenticated    as   evidence. 

§  1906.  Record   of   a   foreign   country,    how   authenticated. 

§  1907.  Copy  of  a  foreign   record,   when  evidence. 

§  190S.  Effect  of  a  judgment  upon  rights  in   various   c  ises. 

§  1909.  Effect   of   othe)-   judicial    orders,    when   conclusive. 

§  1910.  Where   parties   an;   to   be   deemed    the   same. 

§  1911.  What   deemed  adjudged   In  a  julgment. 

§  1912.  Where   sureties   bound,    principal    is   also. 

§  1013.  Record   of  anothsr  state,   its  effect. 

§  1914.  Record   of  a  court  of  admiralty. 

§  1915.  Effect  of  a  foreign  judgment. 

§  1916.  Manner  of  impeaching  a  record. 

§  1917.  The    jurisdiction   necessary    in    a    judgment. 

§  1918.  Manner  of   proving  other  official    documents. 

§  1919.  Public  record  of   private   writing  evidence. 

§  1920.  Entries  in  official  books  prima  facie  evidence. 

§  1921.  Justice's  judgment   in   other  slates,    how  proved. 

§  1922.  Same. 

§  1923.  Contents   of   other   official   certificates. 

§  1924.  Provisions   in   relation   to  states  apply  to   territories. 

§  1925.  Certificates   of    purchase    primary   evidence   of  ownership. 

§  1926.  Entries   made   by   officers   or  boards   prima   facie   evidence. 

§  1927.  U     S.    mineral    land    patent,    date    of    location    prima    facie    evi- 
dence. 

§  1892.  Every  citizen  entitled  to  inspect  and  copy  pub- 
lic writings.  Every  citizen  has  a  right  to  inspect  and  take 
a  copy  of  any  public  writing  of  this  state,  except  as  other- 
wise expressly  provided  by  statute.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     114,  550. 

Public  records,  etc.,  open  to  inspection:  Pol.  Code,  sec. 
1032. 

Proceedings  in  divorce  not  to  be  open  for  inspection: 
See  Pol.  Code,  sec.  1032. 

Fact  of  issuing  attachment  not  to  be  made  public:  See 
Pol.  Code,  sec.  1032. 


rOS  WRITINGS.  S§  1S93-1S99 

§  1893.  Public  officers  bound  to  give  copies.  Every 
public  officer  having  the  custody  of  a  public  writing,  which 
a  citizen  has  a  right  to  inspect,  is  bound  to  give  him,  on 
demand,  a  certified  copy  of  it,  on  payment  of  the  legal  fees 
therefjr,  and  such  copy  is  admissible  as  evidence  in  like 
cases  and  with  like  eifect  as  the  original  writing.  En. 
March  11,  187^^.     Am'd.  1873-4,  381. 

Cal.  Rep.  Cit.     49,  212;    59,  50-3;    70,  15;    70,  16. 

Public  records  open  to  inspection:   Pol.  Code,  sec.  1032. 

§  1894.  Four  kinds  of  public  wriiiftga.  Public  writings 
are  divided  into  four  classes: 

1.  Laws; 

2.  Judicial  records; 

3.  Other    oflBcial    documents; 

4.  Public  records,  kept  in  tbis  state,  of  private  writings. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.     49,  212;    50,  348;    59,  506;    70,  15;    70,  16; 
114,    550. 

§  1895.  Laws,  written  or  unwritten.  Laws,  whether  or- 
ganic or  ordinary,  are  either  written  or  unwritten.  En. 
March   11,  187.'?. 

§  1896.  Written  laws  defined.  A  written  law  is  that 
which  is  promulgated  in  writing,  and  of  v/hich  a  record  is 
in  existence.     Eu.  March  11,  1872. 

§  1897.  Constitution  and  statutes.  The  organic  law  is 
the  constitution  of  government,  and  is  altogether  written. 
Other  written  laws  are  denominated  statutes.  The  writ- 
ten law  of  this  state  is  therefore  contained  in  its  consti- 
tution and  statutes,  and  in  the  constitution  and  statutes 
of  the  United   States.     En.  March  11,  1872. 

Cal.  Rep.   Cit.     137,  223. 

§  1898.  Public  and  private  statutes  defined.  Statutes 
are  public  or  private.  A  private  statute  is  one  which  con- 
cerns only  certain  designated  individuals  and  aifects  only 
their  private  rights.  All  other  statutes  are  public,  in  which 
are  included  statutes  creating  or  a.ffecting  corporations. 
En.  March  11,   1872. 

§  1899.  Unwritten  law  defined.  Unwritten  law  is  the 
law  not  promulgated  and  recorded,  as  mentioned  in  sec- 


§§1900-1903  WPclTINGS.  704 

tion  eighteen  Imndred  and  ninety-six,  but  whlcii  is,  never- 
theless, observed,  and  admiiiistercd  in  the  courts  of  the 
country.  It  has  no  certain  repository,  but  is  collected  from 
the  reports  of  the  decisions  of  the  courts  and  the  treatises 
of  learned  men.     En.   March   11,  1872. 

Cal.  Rep.  Cit.     82,  18. 

§  1900,  Books  containing  laws  presumed  to  be  correct. 
Books  printed  or  published  under  tht^  authority  of  a  si«tor 
state  or  foreign  country  and  purporting  to  contaiu  the 
statutes,  code,  or  other  written  law  of  such  state  or 
country,  or  proved  to  be  commonly  ;i(lmitted  in  the  tri- 
bunals of  such  state  or  country,  as  evidence  of  the  written 
law  thereof,  are  admissible  in  this  state  as  evidence  of 
such  law.     En.  March  11,  1872. 

Prac.  Act,  sec.  453.     En.  April  29,  1851. 
Books — historical,  etc.:   Post,  sec.   1936;    resort  to: Ante, 
sec.  1875;    authority  of:    Post,  sec.  1903,  subds.  35,  36. 
Sister  state — public  writings  of:   Post,  sec.  1924. 


§  1901.  Evidence  of  foreign  law.  A  copy  of  the  written 
law  or  other  public  writing  of  any  state  or  country,  at- 
tested by  the  certificate  of  the  officer  having  charge  of  the 
original,  under  the  public  seal  of  the  state  or  country,  is 
admissible  as  evidence  of  such  law  or  writing.  En.  March 
11,  1872.     Am'd.  1873-4,  381. 

Public  records  of  private  writings:    Post,  sec.  1919. 
Certificate — requisites  of:   Post  sec.  1923. 
Public  writing  of  sister  state:   Post,  sec.  1924. 


§  1902.  Other  evidence  of  laws  of  other  states.  The 
oral  testimony  of  witnesses,  skilled  therein,  is  admissible 
as  evidence  of  the  unwritten  law  of  a  sister  state  or 
foreign  country,  as  are  also  printed  and  published  books 
of  reports  of  decisions  of  the  courts  of  such  state  or 
country,  or  proved  to  be  commonly  admitted  in  such  courts. 
En.  March  11,  1872. 


§  1903.  Recitals  in  statutes,  how  far  evidence.  The 
recitals  in  a  public  statute  are  conclusive  evidence  of  the 
facts  recited,  for  the  purpose  of  carrying  it  into  effect,  but 
no    further.     The    recitals    in    a    private    statute   are    con- 


7ft5  WRITINGS.  8§  19O4-190S 

elusive  evidence  between  parties  who  claim  under  its  pro- 
visions, but  no  further.     En.  March  11,  1872. 

Cal.   Rep.  Cit.     132,  506;     133,  600. 

Recitals — In  written  instrument:  Post,  sec.  1962,  subd. 
2. 

§  1904.  Judicial  record  defined.  A  judicial  record  is  the 
record  or  official  entry  of  the  proceedings  in  a  court  of 
justice,  or  of  the  official  act  of  a  judicial  officer,  in  an 
action  or  special  proceeding.     En.  March  11,  1872. 

Cal.   Rep.  Clt.     52,  186;     118,   101. 

Judgment-roll:   Ante,  sec.  670. 

Execution  book  as  evidence:    Ante,  sec.   683. 

§  1905.  Record,  how  authenticated  as  evidence.  A  judi- 
cial record  of  this  state,  or  of  the  United  States,  may  be 
proved  by  the  production  of  the  original  or  by  a  copy 
thereof  certified  by  the  clerk  or  other  person  having  the 
legal  custody  thereof.  That  of  a  sister  state  may  be 
proved  by  the  attestation  of  the  clerk,  and  the  seal  of  the 
court  annexed,  if  there  be  a  clerk  and  seal,  together  with 
a  certificate  of  the  chief  judge  or  presiding  magistrate, 
that  the  attestation  is  in  due  form.    En.   March  11,   1872. 

Cal.  Rep.  Cit.  81,  152;  104,  414;  113,  256;  118,  257; 
118,   101. 

Prac.  Act,  sec.  449.     En.  April  29,  1861. 

Prac.  Act,  sec.   450.     En.  April  29,  1851.     Am'd.  1854,  67. 

Cal.  Rep.  Cit.     7,  249. 

Judicial  record,  need  of  seal:  Ante,  sec.  158,  subd.  8; 
appointment  of  executor,  etc.:   Ante,  sec.  1429. • 

Judicial  record  of  a  sister  state — U.  S.  Const.,  art.  4, 
Bee.   1. 

Certificate:   Post,  sec.  1923. 

§  1906.     Record  of  a  foreign  country,  how  authenticated. 

A  judicial  record  of  a  foreign  country  may  be  proved  by 
the  attestation  of  the  clerk,  with  the  seal  of  the  court  an- 
nexed. If  there  be  a  clerk  and  a  seal,  or  of  the  legal 
keeper  of  the  record,  with  the  seal  of  his  office  annexed. 
If  there  be  a  seal,  together  with  a  certificate  of  the  chief 
Judge  or  presiding  magistrate,  that  the  person  making 
the  attestation  Is  the  clerk  of  the  court,  or  the  legal 
keeper  of  the  record,  and,  in  either  case,  that  the  signa- 
ture of  such  person  Is  genuine,   and   that  the   attestaticm 

Code   CivU  Proc— 45. 


§S  1907,  1908  WRITINGS.  10» 

is  in  due  form.  The  signature  of  the  chief  Judge  or  pre- 
siding magistrate  must  be  authenticated  by  the  certificate 
of  the  magistrate  or  embassador,  or  a  consul,  vice-con- 
sul, or  consular  agent  of  the  United  States  in  such  foreign 
country.     En.   March   11,   1872.     Am'd.    1873-4,    382. 

Cal.  Rep.  Cit.     86.  101;    104,  412;    104,  413;    104,  414. 

Prac.   Act,  sea   451.     En.   April  29,  1851. 

Certificate:  Post,  sec.  1923. 

§  1907.  Copy  of  a  foreign  record,  when  evidence.  A 
copy  of  the  Judicial  record  of  a  foreign  country  is  also 
admissible  in  evidence,  upon  proof: 

1.  That  the  copy  offered  has  been  compared  by  the  wit- 
ness with  the  original,  and  is  an  exact  transcript  of  the 
whole  of  it; 

2.  That  such  original  was  in  the  custody  of  the  clerk 
of  the  court,  or  other  legal  keeper  of  the  same;   and, 

3.  That  the  copy  is  duly  attested  by  a  seal  which  is 
proved  to  be  the  seal  of  the  court  where  the  record  re- 
mains, if  it  be  the  record  of  a  court;  or  if  there  be  no 
such  seal,  or  if  it, be  not  a  record  of  a  court,  by  the  sig- 
nature of  the  legal  keeper  of  the  original.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.     86,  102;    104,  414. 

Prac.  Act,  sec.  462.     En,  April  29,  1851. 

§  1908.  Effect  of  a  Judgment  upon  rights  In  various 
cases.  The  effect  of  a  judgment  or  final  order  in  an  action 
or  special  proceeding  before  a  court  or  judge  of  this  state, 
or  of  the  United  States,  having  Jurisdiction  to  pronounce 
the  Judgment  or  order,  is  as  follows: 

1.  In  case  of  a  judgment  or  order  against  a  specific 
thing,  or  in  respect  to  the  probate  of  a  will,  or  the  ad- 
ministration of  the  estate  of  a  decedent,  or  in  respect  to 
the  personal,  political,  or  legal  condition  or  relation  of  a 
particular  person,  the  judgment  or  order  is  conclusive 
upon  the  title  to  the  thing,  the  will,  or  administration,  or 
the  condition  or  relation  of  the  person. 

2.  In  other  cases,  the  judgment  or  order  Is,  in  respect 
to  the  matter  directly  adjudged,  conclusive  between  the 
parties  and  their  successors  in  interest  by  title  subsequent 
to  the  commencement  of  the  action  or  special  proceeding, 
litigating  for  the  same  thing  under  the  same  title  and  in 


707  WRITINGS.  SS  1909 -ISU 

the  same  capacity,  provided  they  have  notice  actual  or 
constructive,  of  the  pendency  of  the  action  or  proceeding. 
En.   March  11,  1872.     Am'd.  1873-4,   382. 

Cal.  Rep.  CIt.  54,  257;  56,  420;  58,  114;  58,  163;  62, 
201;  62,  203;  63,  6;  63,  567;  69,  588;  70,  361;  70, 
371;  72.  315;  74,  515;  74.  516;  75.  177;  83.  294; 
91,  349;  96,  807;  109,  205;  112,  287;  119,  151;  IViS, 
496;  134,  398;  138,  459;  138,  722;  141,  402.  Subd. 
1—100,  171;  100,  407;  118,  400;  119,  147;  119,  148; 
121,  65;  121,  69,  121,  444;  122,  484;  130,  508;  130, 
599;  133,  63.  Subd.  2—74,  441;  93.  509;  118.  220; 
119,  147;  127,  248;  129,  236;  133,  108;  133,  109;  133, 
496;  134,  62;  134,  101;  134,  896;  135,  305;  139, 
94;    139,  296;    144,  93;     145,  582. 

Surety  bound  by  record:    Post,  sec.  1912. 

Jurisdiction,   and   collateral   attacks:    Post,   sec.   1917. 

Validity  of  judgment  founded  on  service  by  publication: 
Ante,  sec.  412. 

Probate  and  administration,  etc.:    Ante,  sec.  1338. 

Parties,  when  deemed  same:   Post.  sec.  1910. 

Matter  directly  adjudged:    Post,  sec.   1911. 

Partition,  judgment  In:    Ante,   sec.  766. 

§  1909.     Effect  of  other  Judicial  orders,  when  conclusive. 

Other  judicial  orders  of  a  court  or  judge  of  this  state,  or 
of  the  United  States,  create  a  disputable  presumption,  ac- 
cording to  the  matter  directly  determined,  between  the 
same  parties  and  their  representatives  and  successors  in 
Interest  by  title  subsequent  to  the  commencement  of  the 
action  or  special  proceeding,  litigating  for  the  same  thing 
under  the  same  title  and  in  the  same  capacity.  En.  March 
11,   1872. 

Cal.  Rep.  Cit.     56,  599;     63,  567;    133,  68;    134,  896. 

Disputable  presumptions:    Post,  sec.  1963. 

Parties  and  privies:  Ante,  sec.  1908,  subd.  2;  post,  sec. 
1910. 

§  1910.     Wiiere  parties    are  to    be    deemed    tlie    same. 

The  parties  are  deemed  to  be  the  same  when  those  be- 
tween whom  the  evidence  is  offered  were  on  opposite 
sides  in  the  former  case,  and  a  judgment  or  other  deter- 
mination could  in  that  case  have  been  made  between 
them  alone,  though  other  parties  were  Joined  with  both 
or  either.     En.   March  11,   1872. 

Cal.  Rep.  Cit.     63,  567;     80,  254;    127,  459. 

§  1911.  Wliat  deemed  adjudged  in  a  Judgment.  That 
only  Is  deemed  to  have  been  adjudged  In  a  former  judg- 


f§  1012-1315  WRITINGS.  708 

ment  which  appears  upon  its  face  to  have  been  so  ad- 
Judged,  or  which  was  actually  and  necessarily  Included 
therein  or  necessary  thereto.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  63,  567;  74.  441;  95,  562;  108,  489;  109, 
82;  110,  445;  118,  220;  119.  345;  129,  237;  134.  101; 
134.  272;  134.  654;  135.  305;  136,  651;  144,  94;  146, 
402. 

§  1912.  Where  sureties  bound,  principal  is  also.  When- 
ever, pursuant  to  the  last  four  sections,  a  party  is  bound 
by  a  record,  and  such  party  stands  in  the  relation  of  a 
surety  for  another,  the  latter  is  also  bound  from  the  time 
that  he  has  notice  of  the  action  or  proceeding,  and  an 
opportunity  at  the  surety's  request  to  join  in  the  defense. 
En.  March  11,  1872. 

Cal.   Rep.  Cit.     63,   567. 

§  1913.  Record  of  another  state,  its  effect.  The  effect 
of  a  judicial  record  of  a  sister  state  is  the  same  in  this 
state  as  in  the  state  where  it  was  made,  except  that  it 
can  only  be  enforced  here  by  an  action  or  special  pro- 
ceeding, and  except,  also,  that  the  authority  of  a  guardian 
or  committee,  or  of  an  executor  or  administrator,  doea 
not  extend  beyond  the  jurisdiction  of  the  government  un- 
der which  he  was  invested  with  his  authority.  En.  March 
11,  1872. 

Cal.  Rep.  Cit.     70.  407;    70,  411;     138,  459. 

§  1914.  Record  of  a  court  of  admiralty.  The  effect  of 
the  judicial  record  of  a  court  of  admiralty  of  a  foreign 
country  is  the  same  as  if  it  were  the  record  of  a  court  of 
admiralty  of  the  United  States.     En.  March  11,  1872. 

§  1915.  Effect  of  a  foreign  judgment.  The  effect  of  the 
judgment  of  any  other  tribunal  of  a  foreign  country  hav- 
ing jurisdiction  to  pronounce  the  judgment,  is  as  follows: 

1.  In  case  of  a  judgment  against  a  specific  thing,  the 
judgment  is  conclusive  upon  the  title  to  the  thing; 

2.  In  case  of  a  judgment  against  a  person,  the  judg- 
ment is  presumptive  evidence  of  a  right  as  between  the 
parties  and  their  successors  in  interest  by  a  subsequenc 
title,  and  can  only  be  repelled  by  evidence  of  a  want 
of  jurisdiction,  want  of  notice  to  the  party,  collusion, 
fraud,  or  clear  mistake  of  law  or  fact.  En.  March  11, 
1872. 


709  WRITINGS.  §§  1916-1S18 

§  1916.  Manner  of  impeaching  a  record.  Any  judicial 
record  may  be  impeached  by  evidence  of  a  want  of  juris- 
diction in  the  court  or  judicial  officer,  of  collusion  between 
the  parties,  or  of  fraud  in  the  party  offering  the  record,  in 
respect  to  the  proceedings.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     71,  475;    79,  191;    97.  396;    138.  459. 

S  1917.     The  jurisdiction  necessary  in  a  judgment.     The 

Jurisdiction  sufficient  to  sustain  a  record  is  jurisdiction 
over  the  cause,  over  the  parties,  and  over  the  thing,  when 
a  specific  thing  is  the  subject  of  the  judgment.  En.  March 
11,  1872. 

Cal.  Rep.  Clt.    66,  134. 

S  1918.  Manner  of  proving  other  official  documents. 
Other  official  documents  may  be  proved  as  follows: 

1.  Acts  of  the  executive  of  this  state,  by  the  records  of 
the  state  department  of  the  state;  and  of  the  United 
States,  by  the  records  of  the  state  department  of  the 
United  States,  certified  by  the  heads  of  those  departments 
respectively.  They  may  also  be  proved  by  public  docu- 
ments printed  by  order  of  the  legislature  or  congress,  or 
either  house  thereof. 

2.  The  proceedings  of  the  legislature  of  this  state  or 
of  congress,  by  the  journals  of  those  bodies  respectively, 
or  either  house  thereof,  or  by  published  statutes  or  reso- 
lutions, or  by  copies  certified  by  the  clerk  or  printed  by 
their  order. 

3.  The  acts  of  the  executive,  or  the  proceedings  of  the 
legislature  of  a  sister  state  in  the  same  manner. 

4.  The  acts  of  the  executive,  or  the  proceedings  of  the 
legislature  of  a  foreign  country,  by  journals  published  by 
their  authority,  or  commonly  received  in  that  country  as 
such,  or  by  a  copy  certified  under  the  seal  of  the  country 
or  sovereign,  or  by  a  recognition  thereof  in  some  public  act 
of  the  executive  of  the  United  States. 

5.  Acts  of  a  municipal  corporation  of  this  state,  or  of 
a  board  or  department  thereof,  by  a  copy  certified  by  the 
legal  keeper  thereof,  or  by  a  printed  book  published  by 
the  authority  of  such  corporation. 

6.  Documents  of  any  other  class  in  this  state,  by  the 
original,  or  by  a  copy  certified  by  the  legal  keeper  thereof. 


§§  1919,  1920  WRITINGS.  TIO 

7.  Documents  of  any  other  class  in  a  sister  state,  by  the 
original,  or  by  a  copy,  certified  by  the  legal  keeper  thereof, 
together  with  the  certificate  of  the  secretary  of  state, 
judge  of  the  supreme,  superior,  or  county  court,  or  mayor 
of  a  city  of  such  state,  that  the  copy  is  duly  certified  by 
the  officer  having  the  legal  custody  of  the  original. 

8.  Documents  of  any  other  class  In  a  foreign  country, 
by  the  original,  or  by  a  copy,  certified  by  the  legal  keeper 
thereof,  with  a  certificate,  under  seal  of  the  country  or 
sovereign,  that  the  document  is  a  valid  and  subsisting 
document  of  such  country  and  the  copy  is  duly  certified 
by  the  officer  having  the  legal  custody  of  the  original. 

9.  Documents  in  the  departments  of  the  United  States 
government,  by  the  certificates  of  the  legal  custodian 
thereof.     En.  March  11,  1872.     Am'd.  1873-4,  383. 

Cal.  Rep.  Cit.  69,  495;  113,  55.  Subd.  5—97,  597;  111, 
49.  Subd.  6—52,  187.  Subd.  7—130,  39.  Subd.  9— 
113,  54. 

Certificate:   Sec.  1923. 
Documents  in  this  state:   Post,  sec.  1920. 
"Sister   state"   includes    United   States   and   territories: 
Post,  sec.  1924. 

§  1919.  Public  record  of  private  writing  evidence.  A 
public  record  of  a  private  writing  may  be  proved  by  the 
original  record,  or  by  a  copy  thereof,  certified  by  the 
legal  keeper  of  the  record.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  50,  348;  52,  186;  59,  506;  63,  106;  70,  16- 
70,  367;    70,  368;    89,  139;    91,  164. 

Compare:   Ante,    sec.    1855. 

Certificate:   Post,    sec.    1923. 

Transcript  from  probate  records:  Ante,  sec.  1429, 

§  1920.     Entries   in   official    books   prima  facie   evidence. 

Entries  in  public  or  other  official  books  or  records,  made 
In  the  performance  of  his  duty  by  a  public  officer  of  this 
state,  or  by  another  person  in  the  performance  of  a  duty 
specially  enjoined  by  law,  are  prima  facie  evidence  of  the 
facts  stated  therein.  En.  March  11,  1872.  Am'd  1873-4 
384. 

Cal.  Rep.  Clt.  70,  570;  75,  303;  75,  448;  90,  187;  91 
164;    97,  597;    111,  49;    118,  71. 

Official  documents — Proof  of:   Ante,  sec.  1918. 
Entries — By  officer  or  board,  etc.:  Post,  sec.  1926. 


7U  WRITINGS.  II  1921-1924 

§  1921.  Justice's  judgment  in  other  states,  how  proved. 
A  transcript  from  the  record  or  docket  of  a  justice  of  the 
peace  of  a  sister  state,  of  a  judgment  rendered  by  him, 
of  the  proceedings  in  the  action  before  the  judgment,  of 
the  execution  and  return,  if  any,  subscribed  by  the  justice 
and  verified  in  the  manner  prescribed  in  the  next  section, 
Is  admissible  evidence  of  the  facts  stated  therein.  Bn. 
March  11,  1872. 

Cal.  Rep.  Cit     138,  463. 


§  1922.  Same.  There  must  be  attached  to  the  tran- 
script a  certificate  of  the  justice  that  the  transcript  is  in 
all  respects  correct,  and  that  he  had  jurisdiction  of  the 
action,  and  also  a  further  certificate  of  the  clerk  or  pro- 
thonotary  of  the  county  in  which  the  justice  resided  at  the 
time  of  rendering  the  judgment,  under  the  seal  of  the 
county,  or  the  seal  of  the  court  of  common  pleas  or  county 
court  thereof,  certifying  that  the  person  subscribing  the 
transcript  was,  at  the  date  of  the  judgment,  a  justice  of 
the  peace  in  the  county,  and  that  the  signature  is  genuine. 
Such  judgment,  proceedings,  and  jurisdiction  may  also  be 
proved  by  the  justice  himself,  on  the  production  of  his 
docket,  or  by  a  copy  of  the  judgment,  and  his  oral  exam- 
ination as  a  witness.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     138,  460;    138,  462. 


§  1923.  Contents  of  other  official  certificates.  When- 
ever a  copy  of  a  writing  is  certified  for  the  purpose  of  evi- 
dence, the  certificate  must  state  in  substance  that  the  copy 
is  a  correct  copy  of  the  original,  or  of  a  specified  part 
thereof,  as  the  case  may  be.  The  certificate  must  be  un- 
der the  official  seal  of  the  certifying  ofiicer,  if  there  be  any, 
or  if  he  be  the  clerk  of  a  court  having  a  seal,  under  the 
seal  of  such  court.     En.  March  11,  1872.     Am'd.  1873-4,  384. 

Cal.   Rep.   Cit.   113,   54. 


§  1924.  Provisions  in  relation  to  states  apply  to  terri- 
tories. The  provisions  of  the  preceding  sections  of  this 
article  applicable  to  the  public  writings  of  a  sister  state, 
are  equally  applicable  to  the  public  writings  of  the  United 
States  or  a  territory  of  the  United  States.  En.  March  11, 
1872.    Am'd.  1873-4,  385. 


§§  1923-1927  WUITINGS.  tU 

§  1925.  Certificates  of  purchase  primary  evidence  of 
ownership,  A  certificate  of  purchase  or  of  location  of  any 
lands  in  this  state,  issued  or  made  in  pursuance  of  any 
law  of  the  United  States  or  of  this  state,  is  primary  evi- 
dence that  the  holder  or  assignee  of  such  certificate  is  the 
owner  of  the  land  described  therein:  but  this  evidence 
may  be  overcome  by  proof  that  at  the  time  of  the  location, 
or  time  of  filing  a  pre-emption  claim  on  which  the  certifi- 
cate may  have  been  issued,  the  land  was  in  the  adverse 
possession  of  the  adverse  party,  or  those  under  whom  he 
claims,  or  that  the  adverse  party  is  holding  the  land  for 
mining  purposes.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  51,  414;  52.  301;  59,  626;  63,  453;  75, 
587;  84,  501;  84,  502;  87,  299;  90,  156;  91,  543; 
91,  544;    91,  545;    125,  405. 

§  1926.  Entries  made  by  officers  or  boards  prima  facie 
evidence.  An  entry  made  by  an  officer,  or  board  of  officers, 
or  under  the  direction  and  in  the  presence  of  either,  In 
the  course  of  official  duty,  is  prima  facie  evidence  of  the 
facts  stated  in  such  entry.  EJn.  March  11,  1872.  Am'd. 
1873-4,  385. 

Cal.  Rep.  Cit.     70,  570;    90,  187. 

Return  of  sheriff  is  prima  facie  evidence:  See  Pol.  Code, 
sec.  4178. 


§  1927.  U.  8.  mineral  land  patent,  date  of  location  is 
prima  facie  evidence.  Whenever  any  patent  for  mineral 
lands  within  the  State  of  California,  issued  or  granted  by 
the  United  States  of  America,  shall  contain  a  statement 
of  the  date  of  the  location  of  a  claim  or  claims,  upon  which 
the  granting  or  issuance  of  such  patent  is  based,  such  state- 
ment shall  be  prima  facie  evidence  of  the  date  of  such  loca- 
tion.   En.  Stats.  1905,  78. 


Jia  WRITINGS.  fiS  1S29-1331 


ARTICLE  m. 

PRIVATK   WRITINGS. 

S  MI9.  Priyate    writings   classified. 

§  1930.  Seal   defined. 

§  1931.  Seal,   and  how  made. 

§  1932.  Effect  of  a  seal. 

§  1933.  Execution   of  an  Instrument  drtJaei. 

§  1934.  Compromise   of  a   debt   without  seal   good. 

§  1935.  Subscribing   witness  defined. 

§1936.  Books,    mars,    etc.,    how    far   evidence. 

§  1937.  Original  writing  to  be   produced  or  accounted  for.       __ 

§  1938.  When   In   possession  of  adverse   party,   notice  to  b«  grtTCB. 

§  1939.  Writings  called   for  and  inspected  may   be   withheld. 

I  1940.  Writing,    how   proved. 

§  1941.  Other   witnesses   may   also  testify. 

§  1942.  When   evidence   of   execution  not  necessary- 

§  1943.  Evidence   of   handwriting. 

§  1944.  Evidence   of   handwriting  by   comparison. 

§  1945.  Same. 

§  1946.  Entries   of   decedents,    evidence   In   is>€clfled   eaacs. 

§  1947.  Copies  of  entries  also  allowed. 

§  1948.  Private   writings,    how   proved. 

§  1949.  County   clerks   to   keep  private   papers   deposited.     (KepealeM.) 

5  1950.  Removal   of  public  records. 

§  1951.  Instrument  conveying  or  affecting  real  property  may  be  read  in 
evidence. 

§  1929.  Private  writings  classified.  Private  writings  are 
either: 

1.  Sealed;  or, 

2.  Unsealed.    En.  March  11,  1872. 

No  distinction — Between  sealed  and  unsealed  writings: 
Post,  sec.  1932. 

§  1930.  Seal  defined.  A  seal  is  a  particular  sign,  made 
to  attest  in  the  most  formal  manner,  the  execution  of  an 
instrument.    En.  March  11,  1872. 

Prac.  Act,  sec.  454.     En.  April  29,  1851. 

Seal  generally:  Ante,  sec  14;  how  made:  Post,  sec. 
1931. 

§  1931.  Seal,  and  how  made.  A  public  seal  in  this  state 
is  a  stamp  or  impression  made  by  a  public  ofllcer  with  an 
instrument  provided  by  law,  to  attest  the  execution  of  an 
official  or  public  document,  upon  the  paper,  or  upon  any 
substance  attached  to  the  paper,  which  is  capable  of  re- 
ceiving a  visible  impression.    A  private  seal  may  be  made 


§§  1932-1936  WRITINGS.  HA 

in  the  same  manner  by  any  instrument,  or  it  may  be  made 
by  the  scroll  of  a  pen,  or  by  writing  the  word  "seal" 
against  the  signature  of  the  writer.  A  scroll  or  other 
sign,  made  in  a  sister  state  or  foreign  country,  and  there 
recognized  as  a  seal,  must  be  so  regarded  in  this  state. 
En.  March  11,  1872.     Am'd.  1873-4,  385. 

Scope  of  word  "seal":  Ante,  sec.  14. 

Impression  of  seal:   See  Civ.  Code,  sec.  1628. 

Seals  of  courts:   Ante,  sees.  147-153. 

§  1932.  Effect  of  a  seal.  There  shall  be  no  difference 
hereafter,  in  this  state,  between  sealed  and  unsealed  writ- 
ings. A  writing  under  seal  may  therefore  be  changed,  or 
altogether  discharged,  by  a  writing  not  under  seal.  En. 
March  11,  1872.     Am'd.  1873-4,  386. 

Corresponding  provisions:  See  Civ.  Code,  sec.  1629. 

Agreement  of  composition  requires  no  seal:  Post,  sec. 
1934. 

§  1933.  Execution  of  an  instrument  defined.  The  exe- 
cution of  an  instrument  is  the  subscribing  and  delivering 
it,  with  or  without  affixing  a  seal.     En.  March  11,  1872. 

Cal.  Rep.  Cit.    99,  285;  101,  539;  114,  515;  130,  103. 

§  1934.     Compromise   of   a   debt  without  sea!    good.     An 

agreement  in  writing  without  a  seal  for  the  compromise 
or  settlement  of  a  debt,  is  as  obligatory  as  if  a  seal  were 
affixed.    En.  March  11,  1872. 

§  1935.  Subscribing  witness  defined.  A  subscribing  wit- 
ness is  one  who  sees  a  writing  executed  or  hears  it  ac- 
knowledged, and  at  the  request  of  the  party  thereupon 
signs  his  name  as  a  witness.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     134,  488. 

§  1936.  Books,  maps,  etc.,  how  far  evidence.  Historical 
works,  books  or  science  or  art,  and  published  maps  or 
charts,  when  made  by  persons  indifferent  between  the 
pari:ies,  are  prima  facie  evidence  of  facts  of  general  noto- 
riety and  interest.    En.  March  11,  1872.     Am'd.  1873-4,  386. 

Cal.  Rep.  Cit.     61,  552;  67,  15. 

Books — As  aid  to  court:  Ante,  sec.  1875;  as  evidence; 
Ante,  sec.  1900;  presumptions  as  to:  Post,  sec.  1963  suMa 
35,  S6. 


T15  WRITINGS.  §9  1937-1940 

§  1937.  Original  writing  to  be  produced  or  accounted 
for.  The  original  writing  must  be  produced  and  proved, 
except  as  provided  in  sections  eighteen  liundred  and  fifty- 
five  and  nineteen  hundred  and  nineteen.  If  it  has  been 
lost,  proof  of  the  loss  must  first  be  made  before  evidence 
can  be  given  of  its  contents.  Upon  such  proof  being  made, 
together  with  proof  of  the  due  execution  of  the  writing,  its 
contents  may  be  proved  by  a  copy,  or  by  a  recital  of  its 
contents  in  some  authentic  document,  or  by  the  recollec- 
tion of  a  witness,  as  provided  in  section  eighteen  hundred 
and  fifty-five.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     113,  299. 


§  1938.  When  in  possession  of  adverse  party,  notice  to 
be  given.  If  the  writing  be  in  the  custody  of  the  adverse 
party,  he  must  first  have  reasonable  notice  to  produce  it. 
If  he  then  fail  to  do  so,  the  contents  of  the  writing  may 
be  proved  as  in  the  case  of  its  loss.  But  the  notice  to 
produce  it  is  not  necessary  where  the  writing  is  itself  a 
notice,  or  where  it  has  been  wrongfully  obtained  or  with- 
held by  the  adverse  party.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     59,  506;  132,  136. 

Document  in   possession — Of  opponent:    Ante,  sec.   1855, 
subd.  2. 
Demanding  inspection  of  writing:    Ante,  sec.  1000. 


§  1939.  Writings  called  for  and  inspected  may  be  with- 
held. Though  a  writing  called  for  by  one  party  is  pro- 
duced by  the  other,  and  is  thereupon  inspected  by  the 
party  calling  for  it,  he  is  not  obliged  to  produce  it  as  evi- 
dence in  the  case.    En.  March  11,  1872. 

Writings  shown  to  witness:    Sec.  2054,  post. 

§  1940.  Writing,  how  proved.  Any  writing  may  be 
proved  either: 

1.  By  anyone  who  saw  the  writing  executed;  or, 

2.  By  evidence  of  the  genuineness  of  the  handwriting 
of  the  maker;  or, 

3.  By  a  subscribing  witness.  En.  March  11,  1872.  Aan'd. 
1873-4,  386. 

Cal.  Rep.  Cit     96.  587;   145,  85. 


§§  1941-1945  WRTTINOS.  tM 

Proof  of  execution  of  writing — By  admission:  Post,  sec. 
1942. 

Proof  of  handwriting:   Post,  sec.  1943. 

Subscribing  witness:  Ante,  sec.  1935;  other  evidence  of 
execution  when  admissible:  Post,  sees.  1941-1945;  on  con- 
test of  will:   Ante,  sec.  1315. 

§  1941.  Other  witnesses  may  also  testify.  If  the  sub- 
scribing witness  denies  or  does  not  recollect  the  execu- 
tion of  the  writing,  its  execution  may  still  be  proved  by 
other  evidence.     En.  March  11,  1872. 

§  1942.     When    evidence    of    execution    not     necessary. 

Where,  however,  evidence  is  given  that  the  party  against 
whom  the  writing  is  offered  has  at  any  time  admitted  ita 
execution,  no  other  evidence  of  the  execution  need  be 
given,  when  the  instrument  is  one  mentioned  in  section 
nineteen  hundred  and  forty-five,  or  one  produced  from 
the  custody  of  the  adverse  party,  and  has  been  acted  upon 
by  him  as  genuine.    En.  March  11,  1872. 

§  1943.  Evidence  of  handwriting.  The  handwriting  of  a 
person  may  be  proved  by  anyone  who  believes  it  to  be 
his,  and  who  has  seen  him  write,  or  has  seen  writings  pur- 
porting to  be  his,  upon  which  he  has  acted  or  been  charged, 
and  who  has  thus  acquired  a  knowledge  of  bis  handwrit- 
ing.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     56,  474;   58,  289;   80,  85. 

§  1944.  Evidence  of  handwriting  by  comparison.  Evi- 
dence respecting  the  handwriting  may  also  be  given  by  a 
comparison,  ma-de  by  the  witness  or  the  jury,  with  writ- 
ings admitted  or  treated  as  genuine  by  the  party  against 
whom  the  evidence  is  offered,  or  proved  to  be  genuine  to 
the  satisfaction  of  the  judge.  En.  March  11,  1872.  Am'd. 
1873-4,  386. 

Cal.  Rep.  C5it.     56,  474;  68,  289;  80,  85;  116,  154;  121,  569; 
128,  488. 

§  1945.  Same.  Where  a  writing  is  more  than  thirty 
years  old,  the  comparisons  may  be  made  with  writings 
purporting  to  be  genuine,  and  generally  respected  and 
acted  upon  as  such,  by  persons  having  an  interest  in  know- 
ing the  fact.     En.  March  11,  1872. 


T17  WRITINGS.  55  1946-1U5:J 

Presumption— That  ancient  writing  is  genuine:  Post,  sec. 
1963,  subd.  34. 

§  1946.     Entries  of  decedents,  evidence  in  specified  cases. 

The  entries  and  other  writings  of  a  decedent,  made  at  or 
near  the  time  of  the  transaction,  and  in  a  position  to  itnow 
the  facts  stated  therein,  may  be  read  as  prima  facie  evri- 
dence  of  the  facts  stated  therein,  in  the  following  cases: 

1.  When  the  entry  was  made  against  the  interest  of  the 
person  making  it. 

2.  When  it  was  made  in  a  professional  capacity,  and  in 
the  ordinary  course  of  professional  conduct. 

3.  When  it  was  made  in  the  performance  of  a  duty 
specially  enjoined  by  law.  En.  March  11,  1872.  Am'd. 
1873-4,  386. 

Cal.  Rep.  Cit.     134,  30. 

Entries  in  books — Repeated:  Post,  sec,  1947;  where  al- 
teration: Post,  sec.  1982. 

§  1947.  Copies  of  entries  also  allowed.  When  an  entry 
is  repeated  in  the  regular  course  of  business,  one  being 
copied  from  another  at  or  near  the  time  of  the  transaction, 
all  the  entries  are  equally  regarded  as  originals.  En. 
March   11,   1872. 

Cal.  Rep.  Cit.     82,  166. 

§  1948.  Private  writings,  how  proved.  EJvery  private 
writing,  except  last  wills  and  testaments,  may  be  ac- 
knowledged or  proved  and  certified  in  the  manner  provided 
for  the  acknowledgment  of  proof  of  conveyances  of  real 
property,  and  the  certificate  of  such  acknowledgment  or 
proof  is  prima  facie  evidence  of  the  execution  of  the  writ- 
ing in  the  same  manner  as  if  it  were  a  conveyance  of  real 
property.     En.  March  11,  1872.     Am'd.  1873-4,  387. 

Cal.    Rep.    Cit.     83,   272. 

Conveyance  of  real  property— As  evidence:  Post,  sec. 
1951. 

§  1949.  County  clerks  to  keep  private  papers  deposited. 
En.  March  11,  1872.     Rep.  1873-4,  387. 

§  1950.  Removal  of  public  records.  The  record  of  a 
conveyance  of  real  property,  or  any  other  record,  a  tran- 


SS   »»0i.  i«4  MATERIAL   OBJECTS,    ETC.  ^l» 

script  of  which  is  admissible  in  evidence,  must  not  be  re- 
moved from  the  office  where  it  is  liept,  except  upon  the 
order  of  a  court,  in  cases  where  the  inspection  of  tne 
record  is  shown  to  be  essential  to  the  just  determination 
of  the  cause  or  proceeding  pending,  or  where  the  court  is 
held  in  the  same  building  with  such  office.  En.  March  11, 
1873-4,  388.     Am'd.  1889,   45. 

Cal.  Rep.  Clt.     113,  267. 

§  1951.  Instrument  conveying  or  affecting  real  property 
may  be  read  in  evidence.  Every  instrument  conveying  or 
affecting  real  property,  acknowledged  or  proved  and  certi- 
fied, as  provided  in  the  Civil  Code,  may,  together  with  the 
certificate  of  acknowledgment  or  proof,  be  read  in  evidence 
in  an  action  or  proceeding,  without  further  proof;  also, 
the  original  record  of  such  conveyance  or  instrument  thus 
acknowledged  or  proved,  or  a  certified  copy  oC  the  record 
of  such  conveyance  or  instrument  thus  acknowledged  or 
proved,  may  be  read  in  evidence,  with  the  like  effect  as 
the  original  instrument,  without  further  proof.  En.  Stats. 
1873-4,  388.     Am'd.  1889  45. 

Cal.  Rep.  Cit.  70,  15;  70,  16;  70,  367;  74,  429;  80,  536; 
89,  139;  91,  163;  91,  164;  103,  111;  120,  315;  135,  314; 
135,  319;   139,  557;  144,  34. 

Certified  copy,  etc.:  Sec.  1948,  ante. 


CHAPTER  IV. 

MATERIAL.     OBJECTS     PRESENTED     TO     THE      SENSES,      OTHER 
THAN    WRITINGS. 

8  1954.     Material    objects. 

§  1954.  Material  objects.  Whenever  an  object,  cogniz- 
able by  the  senses,  has  such  a  relation  to  the  fact  in  dis- 
pute as  to  afford  reasonable  grounds  of  belief  respecting 
it,  or  to  make  an  item  in  the  sum  of  the  evidence,  such 
object  may  be  exhibited  to  the  jury,  or  its  existence,  situ- 
ation, and  character  may  be  proved  by  witnesses.  The  ad- 
mission of  such  evidence  must  be  regulated  by  the  sound 
discretion  of  the  court.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     107,  209;  134,  507;  146.  132. 


71»     .  INDIRECT   EVIDENCE,    ETC.  §§  1557-1S61 

CHAPTER  V. 

INDIRECT    EVIDENCE,    INFERENCES,    AND   PRESUMPTIONS. 

§  1957.  Indirect   evidence    classified. 

I  1958.  Inference    defined. 

§  1959.  Presumption    defined. 

§  1960.  When  an   inference  arises. 

§  1961.  Presumptions    may    be    controverted,    whea. 

§  1362.  Specification    of    conclusive    presumptions. 

§  1963.  All   other  presumptions   may   be   controverted. 

§  1957.  Indirect  evidence  classified.  Indirect  evidence 
is  of  two  kinds: 

1.  Inferences;  and, 

2.  Presumptions.     En.  March  11.  1872. 

Cal.  Rep.  Cit.  59,  300;  79,  307;  79,  308;  83,  510;  141,  63; 
143,  398. 

§  1958.  Inference  defined.  An  inference  is  a  deduction 
which  the  reason  of  the  jury  malves  from  the  facts  proved, 
without  an  express  direction  of  law  to  that  effect.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     59,  800;  82,  438;  114,  46;  130,  7;  143,  398. 

§  1959.  Presumption  defined.  A  presumtion  is  a  de- 
duction which  the  law  expressly  directs  to  be  made  from 
particular  facts.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  75,  100;  79,  307;  135,  180;  135,  319;  137,  84; 
143,  398;    143,  647. 

§  1960.  When  an  inference  arises.  An  inference  must 
be  founded: 

1.  On  a  fact  legally  proved;  and, 

2.  On  such  a  deduction  from  that  fact  as  is  warranted 
by  a  consideration  of  the  usual  propensities  or  passions 
of  men,  the  particular  propensities  or  passions  of  the  per- 
son whose  act  is  in  question,  the  course  of  business,  or  the 
course  of  nature.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  59,  300;  75,  100;  143,  263;  143,  398;  143,  647. 
Subd.'  1—139,  123.     Subd.  2—106,  529;   130,  7;   141,  68. 

§  1961.     Presumptions    may   be    controverted,  when.     A 

presumption  (unless  declared  by  law  to  be  conclusive) 
may  be  controverted  by  other  evidence,  direct  or  Indirect; 
but  unless  so  controverted,  the  jury  are  bound  to  find  ac- 
cording to  the  presumption.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  79,  307;  83,  272;  83,  510;  89,  295;  180,  7; 
135,  319;  148,  648;  144,  702. 


§J  1962,  1963  INDIRECT    EVIDENCE,    ETC.  720 

S  1962.  Specification  of  conclusive  presumptions.  The 
following  presumptions,  and  no  others,  are  deemed  con- 
clusive: 

1.  A  malicious  and  guilty  intent,  from  the  deliberate 
commission  of  an  unlawful  act,  for  the  purpose  of  injur- 
ing another; 

2.  The  truth  of  the  facts  recited,  from  the  recital  In  a 
written  Instrument  between  the  parties  thereto,  or  their 
successors  In  Interest  by  a  subsequent  title;  but  this  rule 
does  not  apply  to  the  recital  of  a  consideration: 

3.  Whenever  a  party  has,  by  his  own  declaration,  act,  or 
omission.  Intentionally  and  deliberately  led  another  to  be- 
lieve a  particular  thing  true,  and  to  act  upon  such  belief, 
he  cannot.  In  any  litigation  arising  out  of  such  declaration, 
act,  or  omission,  be  permitted  to  falsify  It; 

4.  A  tenant  Is  not  permitted  to  deny  the  title  of  his 
landlord  at  the  time  of  the  commencement  of  the  relation; 

5.  The  issue  of  a  wife  cohabiting  with  her  husband,  who 
Is  not  Impotent,  Is  indisputably  presumed  to  be  legitimate; 

6.  The  Judgment  or  order  of  a  court,  when  declared  by 
this  code  to  be  conclusive;  but  such  Judgment  or  order 
must  be  alleged  In  the  pleadings,  If  there  be  an  oppor- 
tunity to  do  so;  if  there  be  no  such  opportunity,  the  Judg- 
ment or  order  may  be  used  in  evidence. 

7.  Any  other  presumption  which,  by  statute.  Is  expressly 
made  conclusive.     En.  March  11,  1872. 

Oal.  Rep.  Clt.  70,  105;  70,  442;  89,  295;  89,  296;  128,  274; 
145,  140.  Subd.  1—139,  69;  146,  528;  142,  530.  Bubd. 
2—63,  540;  74,  411;  96,  109;  96,  110,  118,  389;  118,  9»; 
181,  383;  142,  15.  Subd.  3—82,  83;  82,  453;  90,  162; 
107,  295;  109,  220;  110,  106;  115,  365;  130,  539;  134,  444; 
142,  42;  142,  115;  143,  504.  Subd.  4—70,  107.  Subd. 
5—137,  301;  137,  303;  142,  627. 

Subd.  8.     Standing  by,  etc. :  Civ.  Code,  sec.  1709. 

Subd.  4.     Tenant  denying  landlord's  title:  Civ.  Code,  sec. 
1948. 
Subd.  5.     Judgments,  etc.:  Ante,  sec.  1908. 

Decree  allowing  executors,  etc.,  accounts:  Ante,  sec. 
1638;  evidence  of  notice  on  application  for  liters  of  ad- 
ministration: Ante,  sec.  1370;  probate:  Ante,  sec.  1333; 
conclusive  evidence  generally:  Post,  sec.  1978. 

§  1963.  All  other  presumptions  may  be  controverted.  All 
other  presumptions  are  satisfactory,  if  uncontradicted. 
They  are  denominated  disputable  presumptions,  and  may 


721  INDIRECT   EVIDKNCE,    ETC.  §  1963 

be  controverted   by  other  evidence.     The  following  are  of 
that  kind: 

1.  That  a  person  is  innocent  of  crime  or  wrong; 

2.  That  an  unlawful  act  was  done  with  an  unlawful 
intent; 

3.  That  a  person  intends  the  ordinary  consequence  of 
his  voluntary  act; 

4.  That  a  person  takes  ordinary  care  of  his  own  con- 
cerns; 

5.  That  evidence  willfully  suppressed  would  be  adverse 
if  produced; 

6.  That  higher  evidence  would  be  adverse  from  inferior 
being  produced; 

7.  That  money  paid  by  one  to  another  was  due  to  the 
latter; 

8.  That  a  thing  delivered  by  one  to  another  belonged 
to   the   latter; 

9.  That  an  obligation  delivered  up  to  the  debtor  has 
been   paid ; 

10.  That  former  rent  or  installments  have  been  paid 
when  a  receipt  for  later  is  produced; 

11.  That  things  which  a  person  possesses  are  owned  by 
him; 

12.  That  a  person  is  the  owner  of  property  from  exer- 
cising acts  of  ownership  over  it,  or  from  common  reputa- 
tion of  his  ownership; 

13.  That  a  person  in  possession  of  an  order  on  himself 
for  the  payment  of  money,  or  the  delivery  of  a  thing,  has 
paid  the  money  or  delivered  the  thing  accordingly; 

14.  That  a  person  acting  in  a  public  office  was  regularly 
appointed  to  it; 

15.  That  official  duty  has  been  regularly  performed; 

16.  That  a  court  or  judge,  acting  as  such,  whether  in 
this  state  or  any  other  state  or  country,  was  acting  in  the 
lawful   exercise   of   his  jurisdiction; 

17.  That  a  judicial  record,  when  not  conclusive  does 
still  correctly  determine  or  set  forth  the  rights  of  the 
parties; 

18.  That  all  matters  within  an  issue  were  laid  before 
the  jury  and  passed  upon  by  them;  and  in  like  manner, 
that  all  matters  within  a  submission  to  arbitration  were 
laid  before  the  arbitrators  and  passed  upon  by  them; 

19.  That  private  transactions  have  been  fair  and  regu- 
lar; 

20.  That  the  ordinary  course  of  business  has  been  fol- 
lowed; 

Code  Civil  Proc.— 46. 


I  19«  INDIRECT   EVIDENCE,    ETC.  TO 

21.  That  a  promissory  note  or  bill  of  exciiange  was 
given  or  indorsed  for  a  sufficient  consideration; 

22.  That  an  indorsement  of  a  negotiable  promissory 
note  or  bill  of  exchange  was  made  at  the  time  and  place 
of  making  the  note  or  bill; 

23.  That  a  writing  is  truly  dated; 

24.  That  a  letter  duly  directed  and  mailed  was  received 
in  the  regular  course  of  the  mail; 

25.  Identity  of  person  from  identity  of  name; 

26.  That  a  person  not  heard  from  in  seven  years  is 
dead; 

27.  That  acquiescence  followed  from  a  belief  that  the 
thing  acquiesced  in  was  conformable  to  the  right  or  fact; 

28.  That  things  have  happened  according  to  the  ordin- 
ary course  of  nature  and  tJie  ordinary  habits  of  life; 

29.  That  persons  acting  as  copartners  have  entered  into 
contract  of  copartnership; 

30.  That  a  man  and  woman  deporting  themselves  as 
husband  and  wife  have  entered  into  a  lawful  contract  oi! 
marriage; 

31.  That  a  child  born  in  lawful  wedlock,  there  being  no 
divorce  from  bed  and  board,  is  legitimate; 

32.  That  a  thing  once  proved  to  exist  continues  as  long 
as  is  usual  with  things  of  that  nature; 

33.  That  the  law  has  been  obeyed; 

34.  That  a  document  or  writing  more  than  thirty  years 
old,  is  genuine,  when  the  same  has  been  since  generally 
acted  upon  as  genuine,  by  persons  having  an  interest  in 
the  question,  and  its  custody  has  been  satisfactorily  ex- 
plained. 

35.  That  a  printed  and  published  book,  purporting  to 
be  printed  or  published  by  public  authority,  was  so 
printed  or  published; 

36.  That  a  printed  and  published  book,  purporting  to 
contain  reports  of  cases  adjudged  in  the  tribunals  of  the 
state  or  country  where  the  book  is  pubfished,  contains 
correct  reports  of  such  cases; 

37.  That  a  trustee  or  other  person,  whose  duty  It  was 
to  convey  real  property  to  a  particular  person  has  actu- 
ally conveyed  to  him,  when  such  presumption  is  neces- 
sary to  perfect  the  title  of  such  person  or  his  successor 
in   interest; 

38.  The  uninterrupted  use  by  the  public  of  land  for  a 
burial  ground,  for  five  years,  with  the  consent  of  the 
owner  and  without  a  reservation  of  his  rights,  is  pre- 
sumptive evidence  of  his  intention  to  dedicate  it  to  the 
public  for  that  purpose; 


T23  INDIRECT   EVIDENCE,    ETC.  S  194. 

39.  That  there  was  a  good  and  sufficient  consideration 
for  a  written  contract; 

40.  When  two  persons  perish  in  the  same  calamity, 
such  as  a  wreck,  a  battle,  or  a  conflagration,  and  it  is  not 
shown  who  died  first,  and  there  are  no  particular  circum- 
stances from  which  it  can  be  inferred,  survivorship  is 
presumed  from  the  probabilities  resulting  from  the 
strength,   age,   and  sex,   according  to   the   following  rules: 

First. — If  both  of  those  who  have  perished  were  under 
the  age  of  fifteen  years,  the  older  is  presumed  to  have 
survived; 

Second. — If  both  were  above  the  age  of  sixty;  the 
younger  is  presumed  to  have  survived; 

Third — If  one  be  under  fifteen  and  the  other  above 
sixty,  the  former  is  presumed  to  have  survived; 

Fourth. — If  both  be  over  fifteen  and  under  sixty,  and 
the  sexes  be  different,  the  male  is  presumed  to  have  sur- 
vived;  if  the  sexes  be  the  same,  then  the  older; 

Fifth. — If  one  be  under  fifteen  or  over  sixty,  and  the 
other  between  those  ages,  the  latter  is  presumed  to  have 
survived.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  81,  325;  89,  295;  105,  65;  113,  405; 
122,  499;  129,  328;  129,  389;  132,  212;  137,  283; 
146,  121.  Subd.  1—81,  233;  111,  267;  134,  211; 
134,  443;  134,  615;  137,  223;  144,  701;  144,  707. 
Subd.  2—83,  382;  86,  147;  112,  371.  Subd.  3—134, 
443.  Subd.  4—76,  652;  134,  488;  139,  525;  142,  69; 
142,  132.  Subd.  5—130,  356;  133,  241;  141,  60;  143, 
167.  Subd.  6—122,  493;  130,  356;  130,  357;  133, 
241;  140,  399;  143.  167.  Subd.  8—106,  655;  119, 
467.  Subd.  9—79,  566;  106,  529;  125,  621.  Subd. 
10—142,    69.     Subd.    11—69,   202;    83,     166;      106,     655; 

139,  525;  142,  69;  144,  701.  Subd.  12—83,  166;  99, 
372;  139,  525.  Subd.  14—53,  30;  67,  184;  77,  47; 
97,  177;  108,  542;  128,  398;  139,  558;  144,  701. 
Subd.  15—56,  589;  68,  484;  71,  24;  71,  208;  75, 
451;  76,  152;  77,  47;  78,  299;  79,  503;  81,  233;  82, 
516;  83,  449;  87,  48;  97,  597;  100,  321;  107,  186; 
108,    542;     109,    691;     111,    49;     117,    702;     121,    197; 

126,  655;  129,  328;  130,  39;  132,  506;  133,  390;  134, 
211;  135,  180;  135,  231;  136,  244;  136,  406;  138. 
227;  142,  450;  145,  470.  Subd.  16—97.  177;  122,  206; 
128,  398;  132,  506;  133,  390;  135,  180;  143,  278. 
Subd  18—61,  132;  98,  632.  Subd.  19—85,  61;  137, 
35;  144,  707.  Subd.  20—81,  233;  83,  483;  106,  529; 
126.     49;      142,     69.     Subd.     21—96,     110;      106,      655; 

140,  546.     Subd.     22—106,     655.     Subd.     24—99,     73; 


I  156J  INDIRECT    EVIDKNCE,    7iTC.  T24 

112,    371;     129,    24;     132,    76.     Subd.    25—61,    543;     75, 
100;    75,  244;     113,  405;    119,  308;    128,  555;     144,  701. 
Subd.   26—71,   267;     138,   289.     Subd.    28—76,   297;     81. 
233;     139,  525;     142,   69;     144,   707.     Subd.   30.-82,  453. 
Subd.  32—60,  419;    69,  418;    71,  121;  79,  310;  81  405; 
85,  502;     98,   660;     119,   56;     128,   398;     128,   631;     143, 
168.     Subd.     33—81,     233;     123,     631;     126,    49.     Subd. 
34—139,    389.     Subd.    39—83,   483;     96,   110;     129.   389. 
Subd.   40—65,   54;     76,   652. 
Subds.    17,   18.  Proceedings   of   courts:    Ante,    sec.    1908. 
Subd.    20.  Ordinary    course    of    business     has     been     fol- 
lowed:   Sec.    1960. 

Subd.  21.  Note  or  bill  imports  a  consideration. — A  writ- 
ten instrument  is  presumptive  evidence  of  a  consideration: 
Civ.  Code,  sec.  1614.  The  burden  of  showing  a  want  of 
consideration  sufficient  to  support  an  instrument  lies  with 
the  party  seeking  to  invalidate  or  avoid  it:  Civ.  Code, 
sec.  1615;    and  see  subd.  39  of  this  section. 

Subd.  31.  Legitimacy:  See  Civ.  Code,  sec.  193. 
Other  presumptions. — Transcript  to  shorthand  notes  is 
prima  facie  evidence:  Sec.  273,  ante;  order  of  probate 
court  for  disclosure  of  property  of  estate:  Sec.  1460,  ante; 
conveyance  executed  by  executor,  etc.:  Sec.  1601.  ante. 
AflBdavits  on  sales  of  stock  for  deliquent  assessments; 
Civ.   Code,  sec.   348. 

Affidavits  and  entries  in  partnership  proceedings:  Civ. 
Code,  sees.  2471,  2485. 

Protest  of  notary  is  prima  facie  evidence:  Pol.  Code, 
sec.  795. 

Books  and  records  of  regiments,  etc.,  and  proceedings 
are  prima  facie  evidence:   Pol.  Code,  sec.  1935. 

The  secretary  of  the  fire  department,  or  fire  company, 
must  keep  a  record  of  all  certificates  of  exemption  or  ac- 
tive membership,  the  date  thereof  and  to  whom  issued. 
Certificate  of  fire  department  is  prima  facie  evidence  of 
the  facts  therein  stated:    Pol.  Code,  sec.  3341. 

Surveys  and  maps  of  boundary  lines  are  prima  facie  evi- 
dence:  Pol.  Code,  sec.  3973. 


12(  INDISPENSABLE    EVIDENCE.  §§  l»67-mo 


CHAPTER  VI. 

INDISPENSABLE     EVIDENCE. 

I  19«T.  Indispensable  evidence,   what. 

I  ia«8.  To  prove   perjury   and   treason,    more   than   one   witness   requlrea. 

§  1969.  Will   to   be   In    writing. 

§  1970.  Will,    how   revoked. 

§  1971.  Transfer   of  real   property   to   be   In   writing. 

§  1972.  Last   section  not  to  extend  to  certain  cases. 

S  1973.  Agreement    not    In    wriUng,    when    invalid. 

§  1974.  Representation    of   credit   by    writing. 

§  1967.  Indispensable  evidence,  what.  The  law  makes 
certain  evidence  necessary  to  the  validity  of  particular 
acts,  or  the  proof  of  particular  facts.     En.  March  11,  1872. 

§  1968.  To  prove  perjury  and  treason,  more  than  one 
witness  required.  Perjury  and  treason  must  be  proved 
by  testimony  of  more  than  one  witness.  Treason  by  the 
testimony  of  two  witnesses  to  the  same  overt  act;  and 
perjury  by  the  testimony  of  two  witnesses,  or  one  wit- 
ness and  corroborating  circumstances.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  103,  631;  104,  417;  118,  51;  118,  53;  118, 
54;  131.  257;  131,  260;  139,  601;  139,  603;  144,  286; 
146,  117. 

Two  witnesses — ^For  probate  of  lost  will:   Ante,  sec.  1339, 

§  1969.  Will  to  be  in  writing.  A  last  will  and  testament, 
except  a  nuncupative  will,  is  invalid,  unless  it  be  in  writ- 
ing and  executed  with  such  formalities  as  are  required  by 
law.  When,  therefore,  such  a  will  is  to  be  shown,  the 
instrument  itself  must  be  produced,  or  secondary  evidence 
of  Its  contents  be  given.  En.  March  11,  1872.  Am'd. 
1873-4,  388. 

Lost  or  destroyed  will — Probate  of:  Ante,  sees.  1338- 
1341. 

S  1970.  WHI,  how  revoked.  A  written  will  cannot  be 
revoked  or  altered  otherwise  than  as  provided  in  the  Civil 
Code.     En.  March  11,  1872.     Am'd.  1873-4,  388. 

Cal.  Rep.  Clt.    107,  5. 

Revocation  or  alteration  of  will:  See  Civ.  Code,  sees. 
1292  et  seq. 


§§  1971-1973  INDISPENSABLE    EVIDENCE.  728 

§  1971.  Transfer  of  real  property  to  be  in  writing.  No 
estate  or  interest  in  real  property,  other  than  for  leases 
for  a  term  not  exceeding  one  year,  nor  any  trust  or  power 
over  or  concerning  it,  or  in  any  manner  relating  thereto, 
can  be  created,  granted,  assigned,  surrendered,  or  declared, 
otherwise  than  by  operation  of  law,  or  a  conveyance  or 
other  instrument  in  writing,  subscribed  by  the  party  cre- 
ating, granting,  assigning,  surrendering,  or  declaring  the 
same,  or  by  his  lawful  agent  thereunto  authorized  by 
writing.    En.  March  11,  1872. 

Cal.  Rep.  Cit.  64,26;  70,317;  76,471;  78,534;  80,518; 
81,  207;  91,  398;  122,  427;  132,  322;  141,  228;  144, 
782. 

Scope  of  section — Application  restricted  by:  Sec.  1972, 
post. 

Corresponding  provisions:   Civ.  Code,  sec.  1091. 

Real  property — Estate,  interest,  etc.,  in:  Compare  post, 
sec.  1973,  subd.  5. 

Trust:   Civ.  Code,  sec.  852. 

Grant,  etc.:   Civ.  Code,  sec.  1053. 

§  1972.  Last  section  not  to  extend  to  certain  cases. 
The  preceding  section  must  not  be  construed  to  affect  the 
power  of  a  testator  in  the  disposition  of  his  real  property 
by  a  last  will  and  testament,  nor  to  prevent  any  trust 
from  arising  or  being  extinguished  by  implication  or  opera- 
tion of  law,  nor  to  abridge  the  power  of  any  court  to  com- 
pel the  specific  performance  of  an  agreement,  in  case  of 
part  performance  thereof.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     64,  26;    65,  509;    121,  44. 

Specific  performance:   Civ.  Code,  sees.  33S4  et  seq. 

§  1973.  Agreement  not  in  writing,  when  invalid.  In  the 
following  cases  the  agreement  is  invalid,  unless  the  same 
or  some  note  or  memorandum  thereof  be  in  writing,  and 
subscribed  by  the  party  charged,  or  by  his  agent.  '  Evi- 
dence, therefore,  of  the  agreement,  cannot  be  received 
without  the  writing  or  secondary  evidence  of  its  contents: 

1.  An  agreement  that  by  its  terms  is  not  to  be  performed 
within  a  year  from  the  making  thereof; 

2.  A  special  promise  to  answer  for  the  debt,  default,  or 
miscarriage  of  another,  except  in  the  eases  provided  for  in 
section  twenty-seven  hundred  and  ninety-four  of  the  Civil 
Code; 


727  INDISPENSABLE   EVIDENCE.  |  13T4 

3.  An  agreement  made  upon  consideration  of  marriage, 
other  ttian  a  mutual  promise  to  marry; 

4.  An  agreement  for  the  sale  of  goods,  chattels,  or  things 
in  action,  at  a  price  not  less  than  two  hundred  dollars,  un- 
less the  buyer  accept  and  receive  part  of  such  goods  and 
chattels,  or  the  evidences,  or  some  of  them,  of  such  .things 
in  action,  or  pay  at  the  time  some  part  of  the  purchase 
money;  but  when  a  sale  is  made  by  auction,  an  entry  by 
the  auctioneer  in  his  sale-book,  at  the  time  of  the  sale, 
of  the  kind  of  property  sold,  the  terms  of  sale,  the  price, 
a'ad  the  names  of  the  purchaser  and  person  on  whose  ac- 
count the  sale  is  made,  is  a  sufficient  memorandum; 

5.  An  agreement  for  the  leasing  for  a  longer  period 
than  one  year,  or  for  the  sale  of  real  property,  or  of  an 
interest  therein,  and  such  agreement,  if  made  by  an  agent 
of  the  party  sought  to  be  charged,  is  invalid,  unless  the 
authority  of  the  agent  be  in  writing,  subscribed  by  the 
party  sought  to  be  charged.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  64,26;  72,144;  77,282;  78,534;  81,207; 
91,  398;  93.  495;  105,  519;  111,  285.  Subd.  4—117, 
47.     Subd.  5—121,  44;   140,  159. 

Corresponding  provision:   Civ.  Code,  sec.  1624. 

Agreement  for  sale  of  goods,  etc. — Corresponding  provi- 
sion: Civ.  Code,  sec.  1739;  auction  sale:  Civ.  Code,  sec. 
1798;  Pol.  Code,  sec.  3292;  agreement  to  manufacture: 
Civ.   Code,  sec.   1740. 

Parol  evidence,  when  admissible  to  explain  writing: 
Ante,  sec.  1856. 

Guaranty  to  be  in  writing:   Civ.  Code,  sees.  2793,  2794. 

Guaranty  by  executor:   Ante,  sec.  1612. 

Preventing  contract  being  put  into  writing  by  fraud: 
See   Civ.   Code,   sec.   1623. 

§  1974.  Representation  of  credit  by  writing.  No  evi- 
dence is  admissible  to  charge  a  person  upon  a  representa- 
tion as  to  the  credit  of  a  third  person,  unless  such  repre- 
sentation, or  some  memorandum  thereof,  be  in  writing,  and 
either  subscribed  by,  or  in  the  handwriting  of,  the  party 
to  be  charged.     En.  March   11,  1872. 


§§  1978-1982  BY    WHOM    TO    BE    PRODUCED.  T» 

CHAPTER  VII. 

CXDNCLUSIVB    OR   UNANSWERABLE    EVIDENCH. 
§      1978.    Conclusive    or   unanswerable   evidence. 

§  1978.  Conclusive  or  unanswerable  evidence.  No  evi- 
dence is  by  law  made  conclusive  or  unanswerable,  unless 
so  declared  by  this  code.    En.  March  11,  1872. 

TITLE  III. 

OF  THE  PRODUCTION  OF  EVIDENCE. 

Chapter  I.     By  Whom  to  be  Produced,  §§  1981,  1982. 
II.     Means  of  Production,  §§  1985-1997. 
III.     Manner   of   ProducUon,    §§    2002-2054. 

CHAPTER  I. 

BY  WHOM  TO  BE  PRODUCED. 

t  1981.     Evidence  to  be  produced,   by  whom. 
I  1982.    Writing  altered,   who  to  explain. 

§  1981.     Evidence  to  be  produced,  by  whom.     The  party 

holding  the  affirmative  of  the  issue  must  produce  the  evi- 
dence to  prove  it;  therefore,  the  burden  of  proof  lies  on 
the  party  who  would  be  defeated  if  no  evidence  were  given 
on  either  side.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     68,  10;    81,  403;    94,  175;    106,  697;    128, 
62;    137,  283;    140,  421;    140,  430;    140,  432;    140,  439. 

Burden  of  proof:  Ante,  sec.  1869. 

§  1982.  Writing  altered,  who  to  explain.  The  party  pro- 
d""ing  a  writing  as  genuine  which  has  been  altered,  or 
appears  to  have  been  altered,  after  its  execution,  in  a  part 
material  to  the  question  in  dispute,  must  account  for  the 
appearance  or  alteration.  He  may  show  that  the  alteration 
was  made  by  another,  without  his  concurrence,  or  was 
made  with  the  consent  of  the  parties  affected  by  it,  or 
otherwise  properly  or  innocently  made,  or  that  the  altera- 


T29  MEANS    OF    PRODUCTION.  $i   1985,  1986 

tion  did  not  change  the  meaning  or  language  of  the  instru- 
ment. If  he  do  that,  he  may  give  the  writing  in  evidence, 
but  not  otherwise.     En.   March  11,  1872. 

Cal.  Rep.  Cit.     56,  214;  80,  265;  89,  616;  94,  367;  142,  205. 

Prac  Act,  sec.  448.     En.  April  29,  185L 


CHAPTER   II. 

MEANS   OP   PRODUCTION. 

§  1985.  Subpoena   for  witness   defined. 

§  1986.  Subpoena,    how    issued. 

§  1987.  Subpoena,    how   served. 

§  1988.  How,    if   witness   be  concealed. 

§  1989.  When  a   witness   is   compelled   to  attend.  * 

§  1990.  Person    present    compelled    to    testify. 

§   1991.  Di30b€^llence,    how    punished. 

§  1992.  Forfeiture    therefor 

§  1993.  Warrant    may    issue   to   bring   witness,    when. 

§  1994.  Contents  of  warrant. 

§  1995.  If  witness  be  a  prisoner,   how  brought. 

§  1996.  On   whose  motion. 

§  1997.  How   examined. 

§  1985.  Subpoena  for  witness  defined.  The  process  by 
which  the  attendance  of  a  witness  is  required  is  a  sub- 
poena. It  is  a  writ  or  order  directed  to  a  person  and  re- 
quiring his  attendance  at  a  particular  time  and  place  to 
testify  as  a  witness.  It  may  also  require  him  to  bring  with 
him  any  books,  documents,  or  other  things  under  his  con- 
trol, which  he  is  bound  by  law  to  produce  in  evidence.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     126,  239. 

Prac.  Act,  sec.  402.     En.  April  29,  1851.     Am'd.  1855,  197. 

§  1986.  Subpoena,  how  issued.  The  subpoena  is  issued 
as  follows: 

1.  To  require  attendance  before  a  court,  or  at  the  trial 
of  an  issue  therein,  it  is  issued  under  the  seal  of  the 
court  before  which  the  attendance  is  required,  or  in  which 
the  issue  is  pending; 

2.  To  require  attendance  out  of  the  court,  before  a  judge. 
Justice,  or  other  oflficer  authorized  to  administer  oaths  or 
take  testimony  in  any  manner  under  the  laws  of  this  state. 
It  is  issued  by  the  judge,  justice,  or  any  other  oflScer  be- 
fore  whom    the   attendance   is   required; 


§§  19S7.  1988  MEANS   OF   PRODUCTION.  730 

3.  To  require  attendance  before  a  commissioner  ap- 
pointed to  take  testimony  by  a  court  of  a  foreign  country, 
or  of  the  United  States,  or  of  any  other  state  in  the  United 
States,  or  of  any  other  district  or  county  within  this  state, 
or  before  any  officer  or  officers  empowered  by  the  laws  of 
the  United  States  to  talte  testimony,  it  may  be  issued  by 
any  judge  or  justice  of  the  peace  in  places  within  their 
respective  jurisdiction,  with  like  power  to  enforce  attend- 
ance; and,  upon  certificate  of  contumacy  to  said  court,  to 
punish  contempt  of  their  process,  as  such  judge  or  justice 
could  exercise  if  the  subpoena  directed  the  attendance  ot 
the  witness  before  their  courts  in  a  matter  pending  therein. 
En.  March  11,  1872. 

Cal.   Rep.   Cit.     56,   599;    72,   511;    140,   219.     Subd.   2—64, 
401;    140,  14.     Subd.  3—72,  282. 

Prac.  Act,  sec.  403.  En.  April  29,  1851.  Am'd.  1859,  218; 
1866,  708. 


§  1987.  Subpoena,  how  served.  The  service  of  a  sub- 
poena is  made  by  showing  the  original  and  delivering  a 
copy,  or  a  ticket  containing  its  substance,  to  the  witness 
personally,  giving  or  offering  to  him  at  tlie  same  time,  if 
demanded  by  him,  the  fees  to  which  he  is  entitled  for 
travel  to  and  from  the  place  designated,  and  one  day's 
attendance  there.  The  service  must  be  made  so  as  to 
allow  the  witness  a  reasonable  time  for  preparation  and 
travel  to  the  place  of  attendance.  Such  service  may  be 
made  by  any  person.     En.  March  11,  1872. 

Prac.  Act,  sec.  404.    En.  April  29,  1851. 

Costs  where  subpoena  served  by  person  other  than 
sheriff:   See  post.  Appendix,  title  Costs. 


§  1988.  How,  if  witness  be  concealed.  If  a  witness  is 
concealed  in  a  building  or  vessel,  so  as  to  prevent  the 
service  of  a  subpoena  upon  him,  any  court  or  judge,  or  any 
officer  issuing  the  subpoena,  may,  upon  proof  by  affidavit 
of  the  concealment,  and  of  the  materiality  of  the  witness, 
make  an  order  that  the  sheriff  of  the  county  serve  the 
subpoena;  and  the  sheriff  must  serve  it  accordingly,  and 
for  that  purpose  may  break  into  the  building  cr  vessel 
where  the  witness  is  concealed.     En.  March  11,  1872. 

Prac.  Act,  sec.  405.     En.  April  29,  1851. 


7S1  MEANS    OF    PRODUCTION.  88  1989-1993 

§  1989.  When  a  witness  is  compelled  to  attend.  A  wit- 
ness is  not  obliged  to  attend  as  a  witness  before  any  court, 
judge,  justice,  or  any  other  officer,  out  of  the  county  in 
which  he  resides,  unless  the  distance  be  less  than  thirty 
miles  from  his  place  of  residence  to  the  place  of  trial.  En. 
March  11,  1872. 

Cal.  Rep.  Clt.     56,  599;   140,  8. 

§  1990.  Person  present  compelled  to  testify.  A  person 
present  in  court,  or  before  a  judicial  officer,  may  be  re- 
quired to  testify  in  the  same  manner,  as  if  he  were  in  at- 
tendance upon  a  subpoena  issued  by  such  court  or  officer. 
En.  March  11,  1872. 

Prac.  Act,  sec.  406.     En.  April  29,  1851. 

§  1991.  Disobedience,  how  punished.  Disobedience  to  a 
subpoena,  or  a  refusal  to  be  sworn,  or  to  answer  as  a  wit- 
ness, or  to  subscribe  an  affidavit  or  deposition  when  re- 
quired, may  be  punished  as  a  contempt  by  the  court  or 
officer  issuing  the  subpoena  or  requiring  the  witness  to  be 
sworn;  and  if  the  witness  be  a  party,  his  complaint  or 
answer  may  be  stricken  out.    En.  March  11,   1872. 

Cal.  Rep.  Cit.     56,  599;   72,  511;  78,  373;   84,  533;   88,  623; 

120,   42;    139,   472;    140,   8;    140.   12;    140,   13;    140,  14; 

140,  217;   140,  219;   140,  221;  144,  160. 
Prac.  Act,  sec.  409.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     28,  298. 

Refusal  to  answer:   Post,  sec.  2065. 

Contempt:  Ante,  sees.  1209  et  seq. 

§  1992.  Forfeiture  therefor.  A  witness  disobeying  a 
subpoena  also  forfeits  to  the  party  aggrieved  the  sum  of 
one  hundred  dollars,  and  all  damages  which  he  may  sus- 
tain by  the  failure  of  the  witness  to  attend,  which  for- 
feiture and  damages  may  be  recovered  in  a  civil  action. 
En.  March  11,  1872. 

Cal.  Rep.  Clt.    135,  49;  135,  50;  135,  51. 
Prac.  Act,  sec.  410.     En.  April  29,  1851. 

§  1993.  Warrant  may  issue  to  bring  witness,  when.  In 
case  of  failure  of  a  witness  to  attend,  the  court  or  officer 
Issuing  the  subpoena,  upon  proof  of  the  service  thereof, 
and  of  the  failure  of  the  witness,  may  issue  a  warrant  to 
the  sheriff  of  the  county  to  arrest  the  witness  and  bring 


§§  1994-1997  MEANS   OF    PRODUCTION.  781 

him  before  the  court  or  officer  where  his  attendance  was 
required.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     116.  687. 

Prac.  Act,  sec.  411.     En.  April  29,  1851. 

§  1994.  Contents  of  warrant.  Every  warrant  of  com- 
mitment, issued  by  a  court  or  officer  pursuant  to  this 
chapter,  must  specify  therein,  particularly,  the  cause  of 
the  commitment,  and  If  It  be  for  refusing  to  answer  a 
question,  such  question  must  be  stated  In  the  warrant. 
And  every  warrant  to  arrest  or  commit  a  witness,  pursu- 
ant to  this  chapter,  miist  be  directed  to  the  sheriff  of  the 
county  where  the  witness  may  be,  and  must  be  executed 
by  him  in  the  same  manner  as  process  Issued  by  the  supe- 
rior court.     En.  March  11,  1872.     Am'd.  1880,  115. 

§  1995.  If  witness  be  a  prisoner,  how  brought.  If  the 
witness  be  a  prisoner,  confined  in  a  jail  or  prison  within 
this  state,  an  order  for  his  examination  in  the  prison  upon 
deposition,  or  for  his  temporary  removal  and  production 
before  a  court  or  officer,  for  the  purpose  of  being  orally  ex- 
amined, may  be  made  as  follows: 

1.  By  the  court  itself  in  which  the  action  or  special  pro- 
ceeding Is  pending,  unless  It  be  a  Justice's  court. 

2.  By  a  justice  of  the  supreme  court,  or  a  judge  of  tho 
superior  court  of  the  county  where  the  action  or  proceed- 
ing is  pending.  If  pending  before  a  justice's  court,  or  be- 
fore a  judge  or  other  person  out  of  court.  En.  March  11, 
1872.     Am'd.  1880,  115. 

Prac.  Act,  sec.  412.     En.  April  29,  1851. 

§  1996.  On  whose  motion.  Such  order  can  only  be  made 
on  the  motion  of  a  party,  upon  affidavit  showing  the  nature 
of  the  action  or  proceeding,  the  testimony  expected  from 
the  witness,  and  its  materiality.     En.  March  11,  1872. 

Prac.  Act,  sec.  413.     En    April  29,  1851. 

§  1997.  How  examined.  If  the  witness  be  Imprisoned 
in  the  county  where  the  action  or  proceeding  Is  pending, 
his  produQtion  may  be  required.  In  all  other  cases  hla 
examination,  when  allowed,  must  be  taken  upon  deposi- 
tion.    En.  March  11,  1872. 

Prac.  Act,  sec.  414.     En.  April  29,  1851. 


781  MANNER   OF   PRODUCTION.  SS  2002-2005 

CHAPTER  ni. 

MANNER   OF   PRODUCTION. 

Article  I.  Mode   of   Taking   the    Testimony    of   Witnesses,    }§    2002-2006. 

II.  Affidavits,    §§    2009-2015. 

III.  Depositions,     §§    2019-2021. 

IV.  Manner    of    Tailing    Depositions    out    of    the    State,     §§    2024- 

2028. 

V.  Manner   of  Tailing   Depositions   in    the   State,    §§    2031-2038. 

VI.  General    Rules   of   Examination,    55    2042-2054. 

ARTICLE  I. 

MODE   OF   TAKING   THE   TESTIMONY    OF    WITNESSES. 

§  2002.  Testimony,    in   what  mode   taken. 

§  2003.  Affidavit  defined. 

§  2(X)4.  A   deposition   defined. 

§  2005.  Oral   examination    defined. 

§  2006.  Deposition,    how    taken. 

§  2002.  Testimony,  In  what  mode  taken.  The  testimony 
of  witnesses  is  taken  in  three  modes: 

1.  By  affidavit; 

2.  By  deposition; 

3.  By  oral  examination.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     87,  113.     Subd.  1—129,  651.     Siibd.  3—129, 
563. 

§  2003.  Affidavit  defined.  An  affidavit  is  a  written 
declaration  under  oath,  made  without  notice  to  the  adverse 
party.     En.  March  11,  1872. 

Affidavits:  Post,  sees.  2009  et  seq. 

§  2004.  A  deposition  defined.  A  deposition  is  a  written 
declaration  under  oath,  made  upon  notice  to  the  adverse 
party  for  the  purpose  of  enabling  him  to  attend  and  cross- 
examine.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     77,  629. 

Depositions:  Post,  sees.  2019-2021;  form  of:  Post,  sec. 
2006. 

§  2005.  Oral  examination  defined.  An  oral  examina- 
tion is  an  examination  in  presence  of  the  jury  or  tribunal 
which  is  to  decide  the  fact  or  act  upon  it,  the  testimony 


§§  2006-2010  MANNER   OF   PRODUCTION.  7S4 

being  heard  by  the  jury  or  tribunal  from  the  lips  of  the 
witness.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     77,  629;    132,  201. 

General  rules  of  examination:  Post,  sees.  2042-2054. 

§  2006.  Deposition,  how  taken.  Deposition  mnst  be 
taken  in  the  form  of  question  and  answer,  and  the  words 
of  the  witness  must  be  written  down,  unless  the  parties 
agree  to  a  different  mode.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     125,  115. 


ARTICLE  II. 

AFFIDAVITS. 

§  2009.     For   what  purposes   may   be  used. 

§  2010.     Evidence   of   publication,    what. 

§  2011.     Filing   evidence   of   publication. 

§  2012.     Aflrdavits   to  be   used   In   this   state,   before   whom   may   be   taken 

In   this  state. 
§  2013.     Affidavit  out   of   state,    how   taken. 
§  2014.     If  made  in  a  foreign   country,   before  whom    taken. 
§  2015.    Certificate  of  the  clerk.   If  taken  before  a  judge  of  a  court  out 

of    this    state. 

§  2009.  For  what  purposes  may  be  used.  An  affidavit 
may  be  used  to  verify  a  pleading  or  a  paper  in  a  special 
proceedings,  to  prove  the  service  of  a  summons,  notice,  or 
other  paper  in  an  action  or  special  proceeding,  to  obtain 
a  provisional  remedy,  the  examination  of  a  witness,  or  a 
stay  of  proceedings,  or  upon  a  motion,  and  in  any  other 
case  expressly  permitted  by  some  other  provision  of  this 
code.     En.  March  11.  1872. 

Cal.  Rep.  Cit.     129,  651;  141,  556;  142,  426. 

Affidavit:  Post,  sees.  2010,  2011. 

§  2010.  Evidence  of  publication,  what.  Evidence  of  the 
publication  of  a  document  or  notice  required  by  law,  or 
by  an  order  of  a  court  or  judge  to  be  published  in  a  news- 
paper, may  be  given  by  the  affidavit  of  the  printer  of  the 
newspaper,  or  his  foreman  or  principal  clerk,  annexed  to 
a  copy  of  the  document  or  notice,  specifying  the  times 
when  and  the  paper  in  which  the  publication  was  made. 
En.  March  11,  1872. 

Cal.  Rep.  Cit.     91,  437;  97,  447;  131,  252. 

Affidavit  of  publication:   Ante,  sec.  413. 


736  MANNER   OF   PRODUCTION.  5§  2011-2015 

§  2011.  Filing  evidence  of  publication.  If  such  affi- 
davit be  made  in  an  action  or  special  proceeding  pending 
in  a  court,  it  may  be  filed  with  the  court  or  a  clerk  thereof. 
If  not  so  made,  it  may  be  filed  with  the  clerk  of  the  county 
where  the  newspaper  is  printed.  In  either  case,  the  ori- 
ginal aflBdavit,  or  a  copy  thereof,  certified  by  the  judge  ot 
the  court  or  clerk  having  it  in  custody,  is  prima  facie  evi- 
dence of  the  facts  stated  therein.  En.  March  11,  1872. 
Am'd.  1873-4,  388. 

Cal.  Rep.  Cit.     88,  34;  131.  252. 

§  2012.  Affidavits  to  be  used  in  this  state,  before  whom 
may  be  taken  in  this  state.  An  aflidavit  to  be  used  before 
any  court,  judge  or  officer  of  this  state,  may  be  taken  be- 
fore any  judge  or  clerk  of  any  court,  or  any  justice  of  the 
peace  or  notary  public  in  this  state.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     56,  465;  128,  420;  128,  421. 

Prac.  Act,  sec.  424.     En.  April  29,  1851. 

Persons  authorized  to  take  affidavits:  Ante,  sec.  179, 
subd.  3. 

§  2013.  Affidavit  out  of  state,  how  taken.  An  affidavit 
taken  in  another  state  of  the  United  States,  to  be  used  in 
this  state,  may  be  taken  before  a  commissioner  appointed 
by  the  governor  of  this  state  to  take  affidavits  and  depo- 
sitions in  such  other  state,  or  before  any  notary  public 
in  another  state,  or  before  any  judge  or  clerk  of  a  court  of 
record  having  a  seal.  En.  March  11,  1872.  Am'd.  1873-4, 
389. 

Prac.  Act,  s«:.  425.     En.  April  29,  1851. 

§  2014.  If  made  in  a  foreign  country,  before  whom 
taken.  An  affidavit  taken  in  a  foreign  country  to  be  used 
in  this  state,  may  be  taken  before  an  embassador,  minister, 
consul,  vice-consul,  or  consular  agent  of  the  United  States, 
or  before  any  judge  of  a  court  of  record  having  a  seal,  in 
such  foreign  country.  En.  March  11,  1872.  Am'd.  1873-4, 
289. 

Prac.  Act,  sec.  426.     En.  April  29,  1851. 

§  2015.  Certificate  of  the  clerk,  if  taken  before  a  judge 
of  a  court  out  of  this  state.  When  an  affidavit  is  taken 
before  a  judge  or  a  court  in  another  state,  or  in  a  foreign 
country,  the  genuineness  of  the  signature  of  the  judge, 
the  existence  of  the  court  and  the  fact  that  such  judge  is 
a  member  thereof,  must  be  certified  by  the  clerk  of  the 
court,  under  the  seal  thereof.     En.  March  11,  1872. 

Prac.  Act,  sec.  427.     En.  April  29,  1851. 


{:  201»-20a  MANNEU   OF   PRODUCTION.  JM 


ARTICLE  in. 

DEPOSITIONS. 
§  201S.     Deposition,    -when   used. 

§  2020.    Testimony  of  a  witness  out  of  the   state,    wImd   takm. 
§  2021.    In  the  state,   when  taken. 


§  2019.  Deposition,  when  used.  In  all  cases  other  than 
those  mentioned  in  section  two  thousand  and  nine,  where 
a  written  declaration  under  oath  is  used,  it  must  be  a  depo- 
sition as  prescribed  by  this  code.    En.  March  11,  1872. 

Cal.  Rep.  Cit     83,  32. 

Prac.  Act,  sec  620.    Eln.  April  29,  1861, 


§  2020.  Testimony  of  a  witness  out  of  the  state,  when 
taken.  The  testimony  of  a  witness  out  of  the  slate  may 
be  taken  by  deposition,  in  an  action,  at  any  time  after  the 
service  of  the  summons  or  the  appearance  of  the  defend- 
ant; and,  in  a  special  proceeding,  at  any  tim6  after  a  ques- 
tion of  fact  has  arisen  therein.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     140,  8. 

Prac.  Act,  sec.  432.     En.  April  29,  1851. 

Manner  of  taking  depositions  out  of  the  state:  Sees. 
2024  et  seq. 


§  2021.  In  the  state,  when  taken.  The  testimony  of  a 
witness  in  this  state  may  be  taken  by  deposition  In  an 
action  at  any  time  after  the  service  of  the  summons  or 
the  appearance  of  the  defendant,  and  in  a  special  pro- 
ceeding after  a  question  of  fact  has  arisen  therein,  in  the 
following  cases: 

1.  When  the  witness  is  a  party  to  the  action  or  proceed- 
ing, or  an  officer  or  member  of  a  corporation  which  is  a 
party  to  the  action  or  proceeding,  or  a  person  for  whose 
immediate  benefit  the  action  or  proceeding  is  prosecuted 
or  defended; 

2.  When  the  witness  resides  out  of  the  county  in  which 
his  testimony  is  to  be  used,  or  resides  in  the  county  but 


737  MANNER   OF  PRODUCTION.  §  2024 

more   than   fifty  miles  distant  from   the  place   of  trial  or 
hearing  by  the  nearest  usual  traveled  route; 

3.  When  the  witness  is  about  to  leave  the  county  where 
the  action  is  to  be  tried,  and  will  probably  continue  absent 
when  the  testimony  is  required; 

4.  When  the  witness,  otherwise  liable  to  attend  the  trial, 
is  nevertheless  too  infirm  to  attend; 

5.  When  the  testimony  is  required  upon  a  motion,  or  in 
any  other  case  where  the  oral  examination  of  the  witness 
is  not  required; 

6.  When  the  witness  is  the  only  one  who  can  establish 
facts  or  a  fact  material  to  the  issue;  provided,  that  the 
deposition  of  such  witness  shall  not  be  used  if  his  presence 
can  be  procured  at  the  time  of  the  trial  of  the  cause.  En. 
March  11,  1872.     Am'd.  1875-6,  105;    1877-8,  112;   1905,  137. 

Cal.  Rep.  Cit     56,  599;     83,  32;     140,  8;    140,  420.     Subd. 
1—74,  47;    117,  49.     Subd.  2—63,  370;    74,  47.     Subd. 
3—74,  47.     Subd.  4—74,  47.     Subd.  5—129,  563. 
Prac.  Act,  sec,  428.     En.  April  29,  1851. 
Cal.  Rep.  Cit.     3,  97.  . 

Deposition:  Mode  of  taking:  Sec.  2006;  who  may  take: 
Sec.  179,  subd.  3;  in  this  state,  manner  of  taking:  Sees. 
2031  et  seq. 


ARTICLE  IV. 

MAKNER   OF   TAKING  DEPOSITIONS   OUT   OF  THE    STATH. 

§  2024.     How    taken.     Justice's   court.    To   whom   directed. 

§  2025.    I*roper  Inteirogatorlea  may  be  prepared,   or  may  be   waived   by 

the    parties. 
§  2025%.  On    oral    interrogratories. 
§  2026.    Authorities   and   duties   of  commissioner. 

§  2027.    Trial,    when    postponed    for   reason    of   nonreturn    of    commission. 
§  2028.     Deposition,    by   whom    used. 

§  2024.  How  taken.  Justice's  court.  To  whom  di- 
rected. The  deposition  of  a  witness  out  of  this  state  may 
be  taken  upon  a  commission  issued  from  the  court  under 
the  seal  of  the  court,  upon  an  order  of  the  court  or  a  judge 
or  a  justice  thereof,  on  the  application  of  either  party, 
upon  five  days'  previous  notice  to  the  other.  If  the  court 
be  a  justice's  court,  the  commission  shall  have  attached  to 
it  a   certificate,   under  seal   by   the   county   clerk   of  saeh 

Code  CivU  Proc. — 47 


§§  2025,  2025%  MANNBR  OF  PRODUCTION.  7S8 

county,  to  the  effect  that  the  person  issuing  the  same  was 
an  acting  justice  of  the  peace  at  the  date  of  the  commis- 
sion. If  issued  to  any  place  within  the  United  States,  it 
may  be  directed  to  a  person  agreed  upon  by  the  parties, 
or  if  they  do  not  agree,  to  any  judge  or  justice  of  the 
peace  or  commissioner  selected  by  the  court  or  judge  or 
justice  issuing  it.  If  issued  to  any  country  out  of  the 
United  States,  it  may  be  directed  to  a  minister,  embas- 
sador, consul,  vice-consul,  or  consular  agent  of  the  United 
States  in  such  country,  or  to  any  person  agreed  upon  by 
the  parties.  EJn.  March  11,  1872.  Am'd.  1873-4,  389;  1880, 
115;    1891,  51. 

Prac.  Act,  sec.  433.     En.  April  29.  1851. 


§  2025.  Proper  interrogatories  may  be  prepared,  or  may 
be  waived  by  the  parties.  Such  proper  interrogatories, 
direct  and  cross,  as  the  respective  parties  may  prepare 
to  be  settled  if  the  parties  disagree  as  to  their  form,  by 
the  judge  or  officer  granting  the  order  for  the  commis- 
sion, at  a  day  fixed  in  the  order,  "may  be  annexed  to  the 
commission;  or,  when  the  parties  agree  to  that  mode,  the 
examination  may  be  without  written  Interrogatories.  EIn. 
March  11,  1872. 

Prac.  Act,  sec.  434.     En.  April  29,  1851. 

Interrogatories — question  and  answer  in  depositions: 
Ante,  sec.  2006. 


§  2025'/2-  On  oral  Interrogatories.  When  a  party  shall 
desire  to  take  the  evidence  of  a  nonresident  witness,  to 
be  used  in  any  cause  pending  in  this  state,  the  party  de- 
siring the  same  (or  where  notice  shall  have  been  given 
that  a  commission  to  take  the  testimony  of  a  nonresident 
witness  wiU  be  applied  for,  the  opposite  party,  upon  giving 
the  other  three  days'  notice  in  writing  of  his  election  so 
to  do),  may  have  a  commission  directed  in  the  same 
manner  as  provided  in  section  two  thousand  and  twenty- 
four  Code  of  Civil  Procedure,  to  take  such  evidence,  upon 
interrogatories  to  be  propounded  to  the  Tsitness  orally; 
upon  the  taking  of  which  each  party  may  appear  before 
the  commission,  in  person  or  by  attorney,  and  interrogate 
the  witness.  The  party  desiring  such  testimony  shall  give 
to  ihe  other  the  following  notice  of  the  time  and  place  of 


7"9  MANNER    OF   PRODUCTION.  S§  2026-2028 

taking  the  same,  to  v/it:  ten  days,  and  one  day  in  addition 
thereto  (Sundays  included)  for  every  three  hundred  miles' 
travel  from  tbe  place  of  holding  the  court  to  the  place 
where  such  deposition  is  to  be  taken. 

When  a  party  to  at  suit  shall  give  the  opposite  party 
notice  to  take  a  deposition  upon  oral  interrogatories,  and 
shall  fail  to  take  the  same  accordingly,  unless  such  failure 
be  on  account  of  the  nonattendance  of  the  witness,  not 
occasioned  by  the  fault  of  the  party  giving  the  notice,  or 
some  other  unavoidable  cause,  the  party  notified,  if  he 
shall  attend  himself  or  by  attorney,  agreeably  to  the 
notice,  shall  be  entitled  to  two  dollars  per  day  for  each 
day  he  may  attend  under  such  notice,  and  to  six  cents  per 
mile  for  every  mile  that  he  shall  necesarily  travel  in  go- 
ing to  and  returning  from  the  place  designated  to  take  the 
deposition,  to  be  allowed  by  the  court  where  the  suit  is 
pending  and  for  which  execution  may  issue.  En.  Stats. 
1903,  351. 

§  2026.     Authorities  and     duties   of    commissioner.     The 

commission  must  authorize  the  commissioner  to  admin- 
ister an  oath  to  the  witness,  and  to  take  his  deposition  in 
answer  to  the  interrogatories,  or  when  the  examination  is 
to  be  without  interrogatories,  in  respect  to  the  question 
in  dispute,  and  to  certify  the  deposition  to  the  court,  in  a 
sealed  envelope,  directed  to  the  clerk  or  other  person 
designated  or  agreed  upon,  and  forwarded  to  him  by  mail 
or  other  usual  channel  of  conveyance.  Ein.  March  11, 
1872. 

Prac.  Act,  sec.  435.    En.  April  29,  1S51. 

Certificate:  Post,  sec.  2032. 

§  2027.  Trial,  when  postponed  for  reason  of  nonreturn 
of  commission.  A  trial  or  other  proceeding  must  not  be 
postponed  by  reason  of  a  commission  not  returned,  ex- 
cept upon  evidence,  satisfactory  to  the  court,  that  the 
testimony  of  the  witness  is  necessary,  and  that  proper  dili- 
gence has  been  used  to  obtain  it.     En.  March  11,  1872. 

Prac.  Act,  sec.  436.    E)n.  April  29,  1851. 

§  2028.  Deposition,  by  whom  used.  The  deposition  men- 
tioned in  this  article  may  be  used  by  either  party  on  the 


§§  2031,  2032  MANNER    OF    PRODUCTION.  740 

trial  or  other  proceeding  against  any  other  party  giving 
or  receiving  the  notice,  subject  to  all  just  exceptions. 
En.  March  11,  1872. 

Cal.  Rep.  Clt.     133,  477. 

Compare  with  sec.  2034,  post. 


ARTICLE  V. 

MANNER    OF   TAKING    DEPOSITIONS    IN    THIS    STATE. 

§  2031.    Depositions   may   be  taken  before  a  Judge,    etc.,    upon   notice   to 

the    adverse   party. 
§  2032.     Manner    of    taking    depositions.     May    be    used    by    either    pastf 

on   the  trial. 
§  2033.     When    deposition   excluded. 

§  2034.     A   depo.sition  once  taken   may  be   read  at  any   time. 
§  2035.    Deposition   in   this  state  to  be  used   in   other  states. 
§  2036.     How    to   procure    witness   upon   commission. 
I  2037.     How,    if    no   commission. 
§  2038.     Deposition,    how   taken. 

§  2031.  Depositions  may  be  taken  before  a  judge,  etc^ 
upon  notice  to  the  adverse  party.  Either  party  may  have 
the  deposition  taken  of  a  witness  in  this  state,  in  either  of 
the  cases  mentioned  in  section  two  thousand  and  twenty- 
one,  before  a  judge  or  officer  authorized  to  administer 
oaths,  on  serving  upon  the  adverse  party  previous  notice 
of  the  time  and  place  of  examination,  together  with  a  copy 
of  an  affidavit,  showing  that  the  case  is  within  that  sec- 
tion. Such  notice  must  be  at  least  five  days,  adding  also 
one  day  for  every  twenty-five  miles  of  the  distance  of  the 
place  of  examination  from  the  residence  of  the  person  to 
whom  the  notice  is  given,  unless,  for  a  cause  shown,  a 
judge,  by  order,  prescribed  a  shorter  time.  When  a 
shorter  time  is  prescribed,  a  copy  of  the  order  must  be 
served  with  the  notice.    En.  March   11,   1872. 

Cal.  Rep.  Cit.     66,  391;     140,  8;     140,  13;     140,  220. 

Prac.  Act,  sec.  429.  En.  April  29,  1851.  Am'd.  1859, 
218. 

Cal.  Rep.  Cit.     3,  97;    35,  97. 

Subpoena  issuing  to  take  testimony  before  notary: 
Ante,  sec.  1986,  subd.  2. 

§  2032.  Manner  of  taking  depositions.  iVIay  be  used  by 
either  party  on  the  trial.  Either  i)arty  may  attend  the 
examination  and  put  such  questions,  direct  and  cross,  as 
may  be  proper.     The  deposition,  when  completed,  must  be 


741  MANNER    OF   PRODUCTION.  §§  2033,  2034 

carefully  read  to  the  witness  and  corrected  by  him  in  any 
particular,  if  desired;  it  must  then  be  subscribed  by  the 
witness,  certified  by  the  judge  or  officer  taking  the  depo- 
sition, inclosed  in  an  envelope  or  wrapper,  sealed  and 
directed  to  the  clerk  of  the  court  in  which  the  action  is 
pending,  or  to  such  person  as  the  parties  in  writing  may 
agree  upon,  and  either  delivered  by  the  judge  or  officer  to 
the  clerk  or  such  person,  or  transmitted  through  the  mail, 
or  by  some  safe  private  opportunity;  and  thereupon  such 
deposition  may  be  used  by  either  party  upon  the  trial  or 
other  proceeding  against  any  party  giving  or  receiving  the 
notice,  subject  to  all  legal  exceptions;  but  if  the  parties 
attend  at  the  examination,  no  objection  to  the  form  of  an 
interrogatory  shall  be  made  at  the  trial,  unless  the  same 
was  stated  at  the  time  of  the  examination.  If  the  deposi- 
tion be  taken  under  subdivisions  two,  three,  and  four,  of 
section  two  thousand  and  twenty-one,  proof  must  be  made 
at  the  trial  that  the  witness  continues  absent  or  Infirm, 
or  is  dead.  The  deposition  thus  taken  may  be  also  read  in 
case  of  the  death  of  the  witness.     Kn.  March  11,  1872. 

Cal.  Rep.  Cit.     63,  370;   74,  47;   74,  48;   117,  49;   121,  152; 
125,  114;   129,  24;  133,  477;  140,  8;  140,  13;  140,  220. 

Prac.  Act,  sec.  430.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     3,  97. 

Depositions  must  be  in  the  form  of  question  and  answer, 
unless  otherwise  agreed:  Ante,  sec.  2006. 
Notice:  Post,  sec.  2033. 


§  2033.  When  deposition  excluded.  Notwithstanding 
the  taking  of  a  deposition,  it  may  be  excluded  from  the 
case  upon  proof  that  sufficient  notice  was  not  given  to  the 
party  against  whom  it  is  offered  to  enable  him  to  attend 
the  taking  thereof,  or  that  the  taking  was  not  In  all  re- 
spects fair.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     68,  621;  140,  8;  140,  220. 


§  2034.  A  deposition  once  taken  may  be  read  at  any 
time.  When  a  deposition  has  been  once  taken,  it  may 
be  read  by  either  party  in  any  stage  of  the  same  action 
or  proceeding,  or  in  any  other  action  between  the'  same 
parties  upon  the  same  subject,  and  is  then  deemed  the 
evidence  of  the  party  reading  it    En.  March  11,  1872. 

Cal.  Rep.  Cit.     65,  552;  80,  254;   83,  32;  133,  477;  140,  8. 


§§  2035-2O3S  MANNER  OF  PRODUCTION.  US 

Prac.  Act,  sec.  431.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     8,  579. 

Reading  deposition — in  another  action:   Sec  2028. 

§  2035.  Deposition  in  this  state  to  be  used  in  other 
states.  Any  party  to  an  action  or  special  proceeding  in  a 
court,  or  before  a  judge,  of  a  sister  state,  may  obtain  the 
testimony  of  a  witness  residing  in  this  state,  to  be  used 
in  such  action  or  proceeding,  in  the  cases  mentioned  in 
the  next  two  sections.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     140,  3. 

§  2036.     How  to    procure  witness    upon    commission.     If 

a  commission  to  take  such  testimony  has  been  issued  from 
the  court,  or  a  judge  thereof,  before  which  such  action  or 
proceeding  is  pending,  on  producing  the  commission  to  a 
judge  of  the  superior  court,  with  an  affidavit  satisfactory 
to  him  of  the  materiality  of  the  testimony,  he  may  issue 
a  subpoena  to  the  witness,  requiring  him  to  appear  and 
testify  before  the  commissioner  named  in  the  commission, 
at  a  specified  time  and  place.  En.  March  11,  1872.  Am'cL 
1880,  115. 

Cal.  Rep.  Cit.     140,  3. 

Subpoena:   Ante,  sees.  1985  et  seq. 

§  2037.  How,  if  no  commission.  If  a  commission  has 
not  been  issued,  and  it  appear  to  a  judge  of  the  superior 
court,  or  to  a  justice  of  the  peace,  by  affidavit  satisfactory 
to  him: 

1.  That  the  testimony  of  the  witness  is  material  to  either 
party. 

2.  That  a  commission  to  take  the  testimony  of  such  wit- 
ness has  not  been  issued. 

3.  That,  according  to  the  law  of  the  state  where  the 
action  or  special  proceeding  is  pending,  the  -deposition  of 
a  witness  taken  under  such  circumstances,  and  before 
such  judge  or  justice,  will  be  received  in  the  action  or 
proceeding;  he  must  issue  his  subpoena  requiring  the  wit- 
ness to  appear  and  testify  before  him  at  a  specified  time 
and  place.    En.  March  11,  1872.     Am'd.  1880,  115. 

Cal.  Rep.  Cit.    140,  3. 

§  2038.     Deposition,    how   taken.     Upon   the   appearance 

of  the  witness,  the  judge  or  justice  must  cause  his  testi- 
mony to  be  taken  in  writing,  and  must  certify  and  trans- 


743  MANNER   OF   PRODUCTION.  §§  20ia-2044 

mit  the  same  to  the  court  or  judge  before  whom  the  action 
or  proceeding  is  pending,  in  such  manner  as  the  law  of 
that  state  requires.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     125,  116;  140,  3. 


ARTICLE  VL 

GENERAL   RUI..E5S   GF    ETKAMTNATION, 

§  3042.  Order  of  proof,   how  regralated. 

§  2043.  "Witnesses   not   under   examlnatloH   may   be   excluded. 

§  2044.  Court   may    control   mode   of   Interrogation. 

§  2045.  Direct   and   cross-examination   defined. 

§  2046.  Leading   question   defined. 

§  2047.  When   witness   may   refresh   memory   from  notes. 

§  204S.  Cross-examination,    as   to   what. 

§  2049.  Party  producing  witness,   how  far  may  Impeach  his  credit. 

§  2050.  Witness,    how    examined.    When    re-examined. 

§  2051.  How   impeached. 

I  2052.  Same. 

§  2053.  Evidence  of  good  character,   when  allowed. 

§  2054.  Writing  shown  to  witness  may  be  Inspected  by  adverse  party, 

§  2042.  Order  of  proof,  how  regulated.  The  order  ot 
proof  must  be  regulated  by  the  sound  discretion  of  the 
court.  Ordinarily,  the  party  banning  the  ease  must 
exhaust  his  evidence  before  the  other  party  begins.  En. 
March  11,   1872. 

Cal.  Rep.  Cit.     94,  130;  123,  408. 

Order  of  proof,  reopening  case,  rebuttal:  Ante,  sec.  607. 

§  2043.  Witnesses  not  under  examination  may  be  ex- 
cluded. If  either  party  requires  it,  the  judge  may  exclude 
from  the  courtroom  any  witness  of  the  adverse  party, 
not  at  the  time  under  examination,  so  that  he  may  not 
hear  the  testimony  ol  other  witnesses.    En.  March  11,  1872. 

§  2044.  Court  may  control  mode  of  interrogation.  The 
court  must  exercise  a  reasonable  control  over  the  mode  of 
interrogation,  so  as  to  make  it  as  rapid,  as  distinct,  as 
little  annoying  to  the  -witness,  and  as  effective  for  the 
extraction  of  the  truth  as  may  be;  but  subject  to  this  rule 
— the  parties  may  put  such  pertinent  and  legal  questions  as 
they  see  fit.  The  court,  however,  may  stop  the  produc- 
tion of  further  evidence  upon  any  particular  point  when 


§§  2045-2048  MANNER   OF   PRODUCTION.  T4* 

the  evidence  upon  it  is  already  so  full  as  to  preclude  rea- 
sonable doubt.     En.  March  11,  1872. 

Cal.  Rep.  Clt.     63,  58;  72,  60. 

Duty  to  answer  and  protection  of  witness:  Post,  sees. 
2065,  2066. 

§  2045.  Direct  and  cross-examination  defined.  The  ex- 
amination of  a  witness  by  the  party  producing  him  is 
denominated  the  direct  examination;  the  examination  of 
the  same  witness,  upon  the  same  matter,  by  the  adverse 
party,  the  cross-examination.  The  direct  examination 
must  be  completed  before  the  cross-examination  begins, 
unless  the  court  otherwise  direct.     En.  March  11,  1872. 

§  2046.  Leading  question  defined.  A  question  which 
suggests  to  the  witness  the  answer  which  the  examining 
party  desires,  is  denominated  a  leadlHg  or  suggestive  ques- 
tion. On  a  direct  examination,  leading  questions  are  not 
allowed,  except  in  the  sound  discretion  of  the  court,  under 
special  circumstances  making  it  appear  that  the  interests 
of  justice  require  it.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     63,  58;   72,  60;   76,  349. 

§  2047.  When  witness  may  refresh  memory  from  notes. 
A  witness  is  allowed  to  refresh  his  memory  respecting  a 
fact,  by  anything  written  by  himself  or  under  his  direc- 
tion at  the  time  when  the  fact  occurred  or  immediately 
thereafter,  or  at  any  other  time  when  the  fact  was  fresh  In 
his  memory  and  he  knew  that  the  same  was  correctly 
stated  in  the  writing.  But  in  such  case,  the  writing  must 
be  produced  and  may  be  seen  by  the  adverse  party,  who 
may,  if  he  choose,  cross-examine  the  witness  upon  it,  and 
may  read  it  to  the  jury.  So,  also,  a  witness  may  testify 
from  such  a  writing,  though  he  retain  no  recollection  of 
the  particular  facts,  but  such  evidence  must  be  received 
with  caution.     En.  March  11,  1872. 

Cal.  Rep.  Cit.  64,  490;  68,  112;  73,  209;  77,  216;  96,  465; 
97,  227;  98,  132;  101,  104;  111,  69;  116,  213;  131,  480; 
132,  39;  138,  488. 

Inspection  of  writing  shown  to  witness:  Post  sec.  2064. 

§  2048.  Cross-examination,  as  to  what.  The  opposite 
party  may  cross-examine  the  witness  as  to  any  facts  stated 
in  his  direct  examination  or  connected  therewith,  and  in 


745  MANNER   OF  PRODUCTION.  8§  2049-2051 

SO  doing  may  put  leading  questions,  but  If  he  examine  him 
as  to  other  matters,  such  examination  is  to  be  subject  to 
the  same  rules  as  a  direct  examination.  En.  March  11, 
1872. 

Cal.  Rep.  CIt.  66,  604;  69,  172;  79,  408;  110,  418;  116, 
211;    143,  162;    145,  129. 

Stopping  further  testimony:   Ante,  sec.  2044. 

§  2049.  Party  producing  witness,  how  far  may  impeach 
his  credit.  The  party  producing  a  witness  is  not  allowed 
to  Impeach  his  credit  by  evidence  of  bad  character,  but 
he  may  contradict  him  by  other  evidence,  and  may  also 
show  that  he  has  made  at  other  times  statements  incon- 
sistent with  his  present  testimony,  as  provided  in  section 
two  thousand  and  fifty-two.     En.   March   11,   1872. 

Cal.  Rep.  Clt.  68,  586;  68,  588;  69,  172;  80,  161;  111, 
628;     118,  675;     134,  619;    141,  532. 

(  2050.     Witness,     how    examined.     When     re-examined. 

A  witness  once  examined  cannot  be  re-examined  as  to  the 
same  matter  without  leave  of  the  court,  but  he  may  be 
re-examined  as  to  any  new  matter  upon  which  he  has  been 
examined  by  the  adverse  party.  And  after  the  examina- 
tions on  both  sides  are  once  concluded,  the  witness  cannot 
be  recalled  without  leave  of  the  court.  Leave  is  granted 
or  withheld,  In  the  exercise  of  a  sound  discretion.  En. 
March  11.  1872. 

Cal.  Rep.  Clt.       94,  512;    105,  319;    141,  246. 

Recalling  witness— -discretion  of  court:   Sec.  607,  subd.  8. 

§  2051.  How  impeached.  A  witness  may  be  impeached 
by  the  party  against  whom  he  was  called,  by  contradictory 
evidence,  or  by  evidence  that  his  general  reputation  for 
truth,  honesty,  or  Integrity  is  bad,  but  not  by  evidence  of 
particular  wrongful  acts,  except  that  it  may  be  shown  by 
the  examination  of  the  witness,  or  the  record  of  the  judg- 
ment, that  he  has  been  convicted  of  a  felony.  En.  March 
11,  1872. 

57, 
65, 
76, 
96, 


Cal.    Rep.    Clt.     48,  338;     50,  234;     50,  235;     51,   600 


64,  163;  65,  134 
71,  196;  75,  388 
86,  490;    87,  114 


573;  57,  574;    58,  214;    60,  413 

551;  65,  625;    68,  103;    70,  229 

196;  79,  673;    81,  105;    81,  117 

180;  99,  442;    100,  482;     108,  607;    118,  87;     113,  624; 

116,  687;      118,   110;     118,    111;     119,   271;     121,    669; 

128.  358;      124,   657;     125,    134;     125,   135;     125,    136; 

133,  20;    184,  204;    134,  307;    184,  356;    134,  492;    142, 

S94;  liB,  127;    146,  122;    147,  786;    147,  787. 


§§  2052-2064  MANNER   OF   PRODUCTION.  T4fl 

Good  character,   showing  after  Impeachment:    Post,   sec. 

2053. 

Falsus  in  uno  falsus  In  omnibus:   Post,  sec.  2061. 


§  2052.  Same.  A  witness  may  also  be  impeached  by 
evidence  that  he  has  made,  at  other  times,  statements 
inconsistent  with  his  present  testimony;  but  before  this 
can  be  done  the  statements  must  be  related  to  him,  with 
the  circumstances  of  times,  places,  and  persons  present, 
and  he  must  be  aslced  whether  he  made  sucli  statements, 
and  if  so,  allowed  to  explain  them.  If  the  statements  be 
in  writing,  they  must  be  shown  to  the  witness  before  any 
question  is  put  to  him  concerning  them.  En.  March  11, 
1872. 

Cal.  Rep.  Clt.     56,  6;  58,  217;    60,  413;    65,  181;    66,  180; 

68,  586;    68,  588;     69,  172;    74,  898;     76,  196;    80,  161; 

99,   302;     99,   834;     111,    628;     114,   55;     li6,   79;  116, 

220;    118,  675;     120,  175;    120,  176;   120,  666;   120,  666; 

122,  17;     122,  566;     125,  136;     183,  20;     184,  857;  134, 

492;    136.  360;    138,  42;    139,  157;    139,  161;    140,  156; 
141.  244;       141,  582;     143,  127;     145,  775;     146,  776. 


§  2053.     Evidence    of    good    character,    when     allowed. 

Evidence  of  the  good  character  of  a  party  Is  not  admissi- 
ble in  a  civil  -action,  nor  of  a  witness  in  any  action,  until 
the  character  of  such  party  or  witness  has  been  Im- 
peached, or  unless  the  issue  involves  his  character.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     50,  234;    65,  184;    110,  417. 


§  2054.  Writing  shown  to  witness  may  be  Inspected  by 
adverse  party.  Whenever  a  writing  is  shown  to  a  witness, 
it  may  be  inspected  by  the  opposite  party,  and  If  proved 
by  the  witness  must  be  read  to  the  jury  before  his  testi- 
mony is  closed,  or  it  cannot  be  read  except  on  recalling 
the  witness.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     62,  145;   140,  204. 

Writing  to  refresh  memory:   Ante.  sec.  2047. 


m  EFFECT  OF  EVIDElNOa.  f  Mtt 

TITLE  IV. 

OF  THE  EFFECT  OF  EVIDENCE. 

§  2061.    Jury   Juvlges  of  effect  of  evidence,   but  to  be  Instructed  on  cer- 
tain   points. 

§  2061.  Jury  judges  of  effect  of  evidence,  but  to  be  in- 
structed on  certain  points.  The  jury/ subject  to  the  con- 
trol of  the  court,  In  the  cases  specified  in  this  code,  are 
the  judges  of  the  effect  and  value  of  evidence  addressed 
to  them,  except  when  it  is  declared  to  be  conclusive. 
They  are,  .however,  to  be  instructed  by  the  court  on  all 
proper  occasions: 

1.  That  their  power  of  judging  of  the  effect  of  evidence 
is  not  arbitrary,  but  to  be  exercised  with  'egal  discretion, 
and  in  subordination  to  the  rules  of  evidence; 

2.  That  they  are  not  bound  to  decide  in  conformity  with 
the  declarations  of  any  number  of  witnesses,  which  do  not 
produce  conviction  in  their  minds,  against  a  less  number 
or  against  a  presumption  or  other  evidence  satisfying 
their  minds; 

3.  That  a  witness  false  in  one  part  of  his  testimony  is 
to   be  distrusted  in  others; 

4.  That  the  testimony  of  an  accomplice  ought  to  be 
viewed  with  distrust,  and  the  evidence  of  the  oral  admis- 
sions of  a  party  with  caution; 

5.  That  in  civil  cases  the  affirmative  of  the  issue  must 
be  proved,  and  when  the  evidence  is  contradictory  the  de- 
cision must  be  made  according  to  the  preponderance  of 
evidence;  that  in  criminal  cases  guilt  must  be  established 
beyond  a  reasonable  doubt; 

6.  That  evidence  is  to  be  estimated  not  only  by  its  own 
intrinsic  weight,  but  also  according  to  the  evidence  which 
it  is  in  the  power  of  one  side  to  produce,  and  of  the  other 
to  contradict;   and,  therefore, 

7.  That  if  weaker  and  less  satisfactory  evidence  is  of- 
fered, when  it  appears  that  stronger  and  more  satisfactory 
was  within  the  power  of  the  party,  the  evidence  offered 
should  be  viewed  with  distrust.    En.  March  11,  18/2. 

Cal.  Rep.  Cit.  50,  633;  60,  148;  66,  185;  67,  403;  71, 
397;  76,  196;  79,  692;  80,  603;  84,  456;  96,  181; 
105,  523;  111,  14;  115,  12;  115,  14;  125,  519;  141, 
231;  141,  232;  141,  233;  141,  613;  143,  393;  144,  254. 
Subd.  2—122,  179;  142,  655;  144,  36.  Subd.  3—53, 
355;    53,  494;     69,  238;    73,  515;    84,  583;    119,  507; 


§§  2061,  2M5  RIGHTS   AND   DUTIES   OF  WITNESSES.  7« 

121.  163;  126,  4;  131.  233;  134,  184;  138,  45;  138, 
698;  141.  492;  143,  127.  Subd.  4—95,  297;  98,  279; 
111,  13;  119,  332;  121,  670;  131,  258;  143,  391;  144, 
253.  Subd.  5—55,  404;  56,  603;  65,  530;  80,  584; 
84,  33;  134,  488;  136,  414.  Subd.  6—120,  563;  122, 
591;     122,  592;     144,   63.     Subd.  7—122,   591. 

Province  of  jury — questions  of  fact:   Post,  sec.  2101. 

Credibility  of  witnesses,  jury  judges  of:    Sec.  1847,  ante. 

Province  of  court:  Compare  sec.  608,  ante,  and  sec. 
2102,  post. 

Admissions:   Ante,  sec.  1870,  subd.  2. 


TITLE  V. 

OF  THE  RIGHTS  AND  DUTIES  OF  WITNESSES. 

§  2064.  Witnesses  bound  to  attend  when  subpoenaed. 

§  2065.  Witnesses   bound   to   answer   questions. 

§  2066.  Right  of   witnesses   to   protection. 

§  2067.  Witnesses    protected    from    arrest    when    attending,    or    going    or 

returning. 

§  206S.  Arrest  to  be  made  void,   and  party   making  arrest  liable,    etc. 

§  2069.  To  raalie  affidavit  if  arrested. 

§  2070.  Court  to  discharge  witness  from  arrest. 

§  2064.     Witnesses  bound  to    attend    when    subpoenaed. 

A  witness,  served  with  a  subpoena,  must  attend  at  the 
time  appointed,  with  any  papers  under  his  control  required 
by  the  subpoena,  and  answer  all  pertinent  and  legal  ques- 
tions; and,  unless  sooner  discharged,  must  remain  until 
the  testimony  is  closed.     En.   March   11,  1872. 

Prac.  Act,  sec.  407.    En.  April  29,  1851. 

Subpoena:   Ante,  sees.  1985,  1991. 

Answering  questions:  Post,  sec.  2065. 

Witnesses — competency,   etc.:    Ante,  sees.   1878-1884. 

Examination,  impeachment,  refreshing  memory,  etc: 
Ante,  sees.  2042-2054. 

Power  to  compel  attendance:   Ante,  sees.  128,  177. 

Change  of  place  of  holding  court,  effect  of:  Ante,  sec. 
143. 

Contempt:    Ante,  sees.  1209  et  seq. 

§  2065.  Witnesses  bound  to  answer  questions.  A  wit- 
ness   must    answer    questions    legal    and    pertinent   to   the 


T4»  RIGHTS  AND   DUTIES   OF  WITNESSES.  §}  3066-2063 

matter  in  issue,  though  his  answer  may  establish  a  claim 
against  himself;  but  he  need  not  give  an  answer  which 
will  have  a  tendency  to  subject  him  to  punishment  for  a 
felony;  nor  need  he  give  an  answer  which  will  have  a 
direct  tendency  to  degrade  his  character,  unless  it  be  to 
the  very  fact  in  issue,  or  to  a  fact  from  which  the  fact  in 
issue  would  be  presumed.  But  a  witness  must  answer  as 
to  the  fact  of  his  previous  conviction  for  felony.  En. 
March  11,  1872. 

Cal.  Rep.  Cit.     71,  239;  129,  470;  145,  90. 

Prac.  Act,  sec,  408.     En.  April  29,  1851. 

Cal.  Rep.  Clt.    3,  249;  7,  185. 

Contempt:  Ante,  sees.  1209  et  seq. 

§  2066.  Right  of  witnesses  to  protection.  It  is  the  right 
of  a  witness  to  be  protected  from  irrelevant,  improper,  or 
insulting  questions,  and  from  harsh  or  insulting  demeanor; 
to  be  detained  only  so  long  as  the  interests  of  justice  re- 
quire it;  to  be  examined  only  as  to  matters  legal  and 
pertinent  to  the  issue.    En.  March  11,  1872. 

Cal.  Rep.  Cit.     71,  239;  76,  196;  116,  212;  145,  91. 

Compare  sec.  2044. 

Detention  of  witness — unreasonable,  constitutional  pro- 
hibition of:  See  Const.  Cal.,  art.  1,  sec.  6. 

§  2067.  Witnesses  protected  from  arrest  when  attending 
or  going  or  returning.  Every  person  who  has  been,  in  good 
faith,  served  with  a  subpoena  to  atttend  as  a  witness  before 
a  court,  judge,  commissioner,  referee,  or  other  person,  in 
a  case  where  the  disobedience  of  the  witness  may  be  pun- 
ished as  a  contempt,  is  exonerated  from  arrest  in  a  civil 
action  while  going  to  the  place  of  attendance,  necessarily 
remaining  there  and  returning  therefrom.  En.  March  11, 
1872. 

Prac.  Act,  sec.  415.     En.  April  29,  1851. 

§  2068.  Arrest  to  be  made  void,  and  party  making  arrest 
liable,  etc.  The  arrest  of  a  witness,  contrary  to  the  pre- 
ceding section,  is  void,  and  when  willfully  made,  is  a  con- 
tempt of  the  court;  and  the  person  making  it  is  responsi- 
ble to  the  witness  arrested  for  double  the  amount  of  the 
damages  which  may  be  assessed  against  him,  and  is  also 
liable  to  an  action  at  the  suit  of  the  party  serving  the  wit- 


§§  2069,  2070       niGHTS    AND    DUTIES    OF    WITNESSES.  730 

ness  with  a  subpoena,  for  the  damages  sustained  by  him  In 
consequence  of  the  arrest.     En.  March  11,  1872. 

Prac.  Act,  sec.  416.     En.  April  29,  1851. 

Contempt  of  court:   Ante,  sees.  1209  et  seq. 

§  2069.  To  make  affidavit  if  arrested.  An  officer  is  not 
liable  to  the  party  for  making  the  arrest  in  ignorance  of 
the  facts  creating  the  exoneration,  but  is  liable  for  any 
subsequent  detention  of  the  party,  if  such  party  claim  the 
exemption  and  make  an  affidavit  stating; 

1.  That  he  has  been  served  with  a  subpoena  to  attend 
as  a  witness  before  a  court,  officer,  or  other  person,  speci- 
fying the  same,  the  place  of  attendance,  and  the  action 
or  proceeding  in  which  the  subpoena  was  issued;   and, 

2.  That  he  has  not  thus  been  served  by  his  own  pro- 
curement, with  the  intention  of  avoiding  arrest; 

3.  That  he  is  at  the  time  going  to  the  place  of  attend- 
ance, or  returning  therefrom,  or  remaining  there  in  obe- 
dience to  the  subpoena. 

The  affidavit  may  be  taken  by  the  officer,  and  exonerates 
him  from  liability  for  discharging  the  witness  when  ar- 
rested.    En.  March  11,  1872. 

§  2070.  Court  to  discharge  witness  from  arrest.  The 
court  or  officer  issuing  the  subpoena,  and  the  court  or  offi- 
cer before  whom  the  attendance  is  required,  may  discharge 
the  witness  from  an  arrest  made  in  violation  of  section  two 
thousand  and  sixty-seven.  If  the  court  have  adjourned 
before  the  arrest,  or  before  application  for  the  discharge, 
a  judge  of  the  court  may  grant  the  discharge.  En.  March 
11,  1872.     Am'd.  1880,  116. 


751  EVIDENCE    IN    PARTICULAR    CASES.  {$  2074-2076 


TITLE    VI. 

OF    EVIDENCE     IN    PARTICULAR    CASES,    AND    MIS- 
CELLANEOUS AND  GENERAL  PROVISIONS. 

Chapter  I.     Evidence    in    Particular   Cases,    §§    2074-2079. 

II.     Proceedings  to  Perpetuate  Testimony,  §§  2083- 
2089. 
III.     Administration     of     Oaths     and     Affirmations, 

§§  2093-2097. 
rV.     General  Provisions,  §§  2101-2104. 


CHAPTER  I. 

BVTDKNCE  IN  PARTICULAR   CASES. 

§  2074.  An  offer  equivalent  to  payment. 

§  2075.  Whoever   pays   entlltled    to    receipt. 

§  2076.  Objections    to    tender   must    be    spcclOed. 

§  2077.  Rules  for  construing  description  of  lands. 

§  2078.  Compromise  offer  of  no  avail. 

§  2079.  In  action  for  divorce,   admission  not  sufficient. 

§  2074.  An  offer  equivalent  to  payment.  An  offer  in 
writing  to  pay  a  particular  sum  of  money,  or  to  deliver  a 
written  instrument  or  specific  personal  property,  is,  if  not 
accepted,  equivalent  to  the  actual  production  and  tender 
of  the  money,  instrument,  or  property.     En.  March  11,  1872. 

Cal.  Rep.  Cit.     90,  585;  137,  382. 

Offer  to  compromise:   Sees.  997,  ante,  2078,  post. 
Offer  of  performance:   See  Civ.  Code,  sees.  1485  et  seq. 

§  2075.  Whoever  pays  entitled  to  receipt.  Whoever 
pays  money,  or  delivers  an  instrument  or  property,  is  en- 
titled to  a  receipt  therefor  from  the  person  to  whom  tne 
payment  or  delivery  is  made,  and  may  demand  a  proper  sig- 
nature to  such  receipt  as  a  condition  of  the  payment  or  de- 
livery.    En.  March  11,  1872. 

Debtor  entitled  to:  Civ.  Code,  sec.  1499, 

§  2076.  Objections  to  tender  must  be  specified.  The 
person  to    whom  a    tender  is    made,  must,    at  the    Ume, 


I  207T  EVID'i:NCE   TS   FARTICULAR    CASES.  752 

specify  any  objection  he  may  have  to  the  money,  instru- 
ment, or  property,  or  he  must  be  deemed  to  have  waived  it; 
and  if  the  objection  be  to  the  amount  of  money,  the  terms 
of  the  instrument,  or  the  amount  or  kind  of  property,  he 
must  specify  the  amount,  terms,  or  kind  which  he  requires, 
or  be  precluded  from  objecting  afterward.  En.  March  11, 
1872. 

Cal.  Rep.  Cit.     67,    88;  79,  43;   89,  263;  119,  102;  122,  322; 
124,  39;   128,  213;  137,  288;   137,  382;   137,  383. 

Objections  must  be  stated:  Civ,  Code,  sec.  1501. 


§  2077.     Rules  for  construing  description  of  lands.     The 

following  are  the  rules  for  construing  the  descriptive  part 
of  a  conveyance  of  real  property,  when  the  construction  is 
doubtful  and  there  are  no  other  sufficient  circumstances  to 
determine  it: 

1.  Where  there  are  certain  definite  and  ascertained  par- 
ticulars in  the  description,  the  addition  of  others  which  are 
indefinite,  unknown,  or  false,  does  not  frustrate  the  con- 
veyance, but  it  is  to  be  construed  by  the  first  mentioned 
particulars. 

2.  When  permanent  and  visible  or  ascertained  bounda- 
ries or  monuments  are  inconsistent  with  the  measurement, 
either  of  lines,  angles,  or  surfaces,  the  boundaries  or  monu- 
ments are  paramount. 

3.  Between  different  measurements  which  are  incon- 
sistent with  each  other,  that  of  angles  is  paramount  to  that 
of  surfaces,  and  that  of  lines  paramount  to  both. 

4.  When  a  road,  or  stream  of  water  not  navigable,  is  the 
boundary,  the  rights  of  the  grantor  to  the  middle  of  the 
road  or  the  thread  of  the  stream  are  included  in  the  con- 
veyance, except  where  the  road  or  thread  of  the  stream  is 
held  under  another  title. 

5.  When  tide-water  is  the  boundaiy  the  rights  of  the 
grantor  to  ordinary  high-water  mark  are  included  in  the 
conveyance.  When  a  navigable  lake,  where  there  is  no 
tide,  is  the  boundary,  the  rights  of  the  grantor  to  low- 
water  mark,  are  included  in  the  conveyance. 

6.  When  the  description  refers  to  a  map,  and  that  refer- 
ence is  inconsistent  with  other  particulars,  it  controls 
them  if  it  appear  that  the  parties  acted  with  reference  to 
the  map;    otherwise,  the    map    is    subordinate    to    otiier 


753  TO    PERPETUATE   TESTIMONY.  §§  «)7S-20S! 

definite  and   ascertained  particulars.     En.   March.  11,  1872. 
Am'd.  1873-4,  390. 

Cal.  Rep.  Cit.  108,  185;  141,  447;  141,  450;  141,  456;  143, 
96.  Subd.  1—66,  86;  135,  321;  141,  452.  Subd.  4—  69, 
206.     Subd.  6—69,  206;   141,  452. 

Construction  of  instruments,  generally:    Sees.  1859,  18G0. 

§  2078.  Compromise  offer  of  no  avail.  An  offer  of  com- 
promise is  not  an  admission  that  anything  is  due.  En. 
March  11.  1872. 

Cal.  Rep.  Cit.     81,  405. 

Offer  to  compromise — after  suit  brought:  Sec.  997. 

§  2079.  In  action  for  divorce,  admission  not  sufficient. 
In  an  action  for  divorce  on  the  ground  of  adultery,  a  con- 
fession of  adultery,  whether  in  or  out  of  the  pleadings,  is 
not  of  itself  sufficient  to  justify  a  judgment  of  divorce. 
En.  March  11,  1872. 


CHAPTER  II. 

PROCEEDINGS    TO    PERPETUATE    TESTIMONY. 

§  20S3.  Evidence  may  be  perpetuated. 

§  20S4.  Manner   of  application   for   order. 

§  205!.").  Notice   of   time   and    place   to   be   given. 

§  20.S'>.  Manner  of  taking  the  deposition. 

§  20S7.  Papers   prima  facie   evidence. 

§  2(iS8.  When   the  evidence  may   be  produced. 

§  20S9.  Effect   of    the   depo.sition. 

§  2083.  Evidence  may  be  perpetuated.  The  testimony 
of  a  witness  may  be  taken  and  perpetuated  as  provided  in 
this  chapter.     En.  March  11,  1872. 

Prac.  Act,  sec.  437.     En.  April  29,  1851.     Am'd.  1859,  219. 

§  2084.  Manner  of  application  for  order.  The  applicant 
must  produce  to  a  judge  of  the  superior  court  a  petition, 
verified  by  the  oath  of  the  applicant,  stating: 

1.  That  the  applicant  expects  to  be  a  party  to  an  action 
in  a  court  in  this  state,  and,  in  such  case,  the  names  of  the 
persons  whom  he  expects  will  be  adverse  parties;  or, 

2.  That  the  proof  of  some  fact  is  necessary  to  perfect 
the  title  to  property  in  which  he  is  interested,  or  to  estab- 
lish marriage,  descent,  heirship,  or  any  other  matter  which 

Code  Civil  Proe.— «. 


S§  2085,  2086  TO    PERrETUATE    TESTIMONY.  7M 

may  hereafter  become  material  to  establish,  though  no 
BTiit  may  at  the  time  be  anticipated,  or,  if  anticipated,  he 
may  not  know  the  parties  to  such  suit;  and, 

3.  The  name  of  the  witness  to  be  examined,  his  place 
of  residence,  and  a  general  outline  of  the  facts  expected  to 
be  proved.  The  judge  to  whom  such  petition  is  presented 
must  make  an  order  allowing  the  examination,  and  desig- 
nating the  oflficer  before  whom  the  same  must  be  taken, 
and  prescribing  the  notice  to  be  given,  which  notice.  If  the 
parties  expectant  are  known  and  reside  in  this  state,  must 
be  personally  served,  and  if  unkno'WTi,  such  notice  must  be 
served  on  the  clerk  of  the  county  where  the  property  to 
be  affected  by  such  evidence  is  situated,  or  the  judge  mak- 
ing the  order  resides,  as  may  be  directed  by  him,  and  by 
publication  thereof  in  some  newspaper,  to  be  designated 
by  the  judge,  for  the  same  period  required  for  the  publica- 
tion of  summons.  The  judge  must  also  designate  in  his 
order  the  clerk  of  the  county  to  whom  the  deposition  must 
be  returned  when  taken.  En.  March  11,  1872.  Am'd. 
1873-4,  391;  1880,  116. 

Prac.  Act,  sec.  438.     En.  April  29,  1851.     Am'd.  1859,  219. 

Cal.  Rep.  Cit.     37,  275. 

§  2085.  Notice  of  time  and  place  to  be  given.  The  per- 
son appointed  by  the  judge  to  take  the  depositions  is 
authorized,  if  a  resident  of  this  state,  on  receiving  a  copy 
of  the  order  of  the  judge,  and  of  the  notice  prescribed  in 
the  last  section,  with  proof  of  its  personal  service  or  pub- 
lication; or,  if  a  resident  without  the  state,  on  receiving 
the  commission  mentioned  in  the  next  section,  with  proof 
of  like  service  of  publication  of  the  notice;  to  take  the 
deposition  of  the  witness  named  in  the  order  of  the  judge, 
or  in  the  commission,  or,  if  more  than  one  witness  is  thus 
named,  of  such  of  them  as  appear  before  him,  at  the  time 
designated,  and  the  taking  of  the  same  may  be  continued 
from  time  to  time.     En.  March  11,  1872.     Am'd.  1873-4,  392. 

Prac.  Act,  sec.  439.     En.  April  29,  1851.     Am'd.  1859,  219. 

§  2086.  Manner  of  taking  the  deposition.  The  examina- 
tion must  be  by  question  and  answer,  and  if  the  testimony 
is  to  be  taken  in  another  state,  it  must  be  taken  upon  a 
commission  to  be  issued  by  the  judge  allowing  the  ex- 
amination, under  tJie  seal  of  the  court  of  which  he  is  judge, 
and  upon  interrogatories,  to  be  settled  in  the  same  manner 
as  in  cases  of  depositions  taken  under  commission  in  pend- 
ing actions,  unless  the  parties  expectant,  if  known,  other- 


755  TO   PERPETUATE   TESTIMONY.  S$  a087-2W» 

wise  agree.  If  such  parties  are  unknown,  notice  of  the 
settlement  of  the  interrogatories  shall  be  published  in  some 
newspaper  for  such  time  as  the  judge  may  designate.  The 
deposition,  when  completed,  must  be  carefully  read  to  and 
subscribed  by  the  witness,  then  certified  by  the  officer  or 
person  taking  the  same,  and  shall  then  be  sealed  up  and 
delivered  or  transmitted  to  the  clerk  of  the  county  desig- 
nated in  the  order  of  the  judge  allowing  the  examination, 
who  shall  file  the  same  when  received.  The  judge  allow- 
ing the  examination  shall  file  with  the  clerk  the  order 
for  the  examination,  the  petition  on  which  the  same  was 
granted,  with  proof  of  service  of  the  order  and  notice.  En. 
March  11,  1872.     Am'd.  1873-4,  392. 

Prac.  Act,  sec,  440.     En.  April  29,  1851.     Am'd.  1859,  219. 

§  2087.  Papers  prima  facie  evidence.  The  petition  and 
order  and  papers  filed  by  the  judge  as  provided  in  section 
two  thousand  and  eighty-six,  or  a  certified  copy  thereof, 
are  prima  facie  evidence  of  the  facts  stated  therein  to 
show  compliance  with  the  provisions  of  this  chapter.  En. 
March  11,  1872.     Am'd.  1873-4,  393. 

Prac.  Act,  sec.  441.     En.  April  29,  1851.    Am'd.  1859,  219. 

§  2038.  When  the  evidence  may  be  produced.  If  a  trial 
be  had  between  the  parties  named  in  the  petition  as  par- 
ties expectant,  or  their  successors  in  interest,  or  between 
any  parties  wherein  it  may  be  material  to  establish  the 
facts  which  such  depositions  prove,  or  tend  to  prove,  upon 
proof  of  the  death  or  insanity  of  the  witnesses,  or  that  they 
cannot  be  found,  or  are  unable,  by  reason  of  age  or  other 
infirmity,  to  give  their  testimony,  the  depositions  or  copies 
thereof  may  be  used  by  either  party,  subject  to  all  legal 
objections;  but  if  the  parties  attended  at  the  examination, 
no  objection  to  the  form  of  an  interrogatory  can  be  made 
at  the  trial,  unless  the  same  was  stated  at  the  examination. 
En.  March  11,  1872.     Am'd.  1873-4,  393. 

Prac.  Act,  sec.  442.     En.  April  29,  1851.     Am'd.  1859,  219. 

Cal.  Rep.  Cit.     3,  128. 

§  2089.  Effect  of  the  deposition.  The  deposition  so 
taken  and  read  in  evidence  has  the  same  effect  as  the  oral 
testimony  of  the  witness,  and  no  other,  and  every  objec- 
tion to  the  witness  or  to  the  relevancy  of  any  question  put 
to  him,  or  of  any  answer  given  by  him,  may  be  made  in 
the  same  manner  as  if  he  were  examined  orally  at  the 
trial.    En.  March  11,  1872. 


§§  2093-2096  OATHS   AND   AFFIRMATIONS.  W 


CHAPTER  III. 

ADMINISTRATION   OF   OATHS   AND    AFFIRMATIONS. 

§  2033.  Judicial    and    certain    ofRccrs    authorized   to   administer   oaths. 

§  'lO'Ji.  Form   of  ordinary  oath    to   a   witness. 

§  l!0'.i5.  Form   may   be  varied   to  suit  witness'    belief. 

§  'luM.  Same. 

S  2097.  Any  person  who  prefers  it  may  declare  or  afflnn. 


§  2093,  Judicial  and  certain  officers  authorized  to  ad- 
minister oaths.  Every  court,  every  judge  or  clerk  of  any 
court,  every  justice  and  every  notary  public,  and  every 
officer  or  person  authorize-d  to  take  testimony  in  any  ac- 
tion or  proceeding,  or  to  decide  upon  evidence,  has  power 
to  administer  oaths  or  affirmations.     En.  March  11,  1872. 

Cal.    Rep.   Cit.     56.  465;    56,   590;    64,  269;    120,   169;    128, 
420. 

Prac.  Act,  sec.  443.     En.  April  29,  1851. 

Cal.  Rep.  Cit.     3,  97. 

Administration  of  oaths — ^by  whom:  Ante,  sec.  128, 
subd.  7;  ante,  sec.  177,  subd.  4;  Pol,  Code,  sees.  1028,  4103, 
4118. 


§  2094.  Form  of  ordinary  oath  to  a  witness.  An  oath, 
or  affirmation,  in  an  action  or  proceeding,  may  be  admin- 
istered as  follows,  the  person  who  swears,  or  affirms,  ex- 
pressing his  assent  when  addressed  in  the  following  form: 
"You  do  solemnly  swear  (or  affirm,  as  the  case  may  be) 
that  the  evidence  you  shall  give  in  this  issue   (or  matter) 

pending    between    and    ,   shall    be    the   truth,    the 

whole  truth,  and  nothing  but  the  truth,  so  help  you  God." 
En.  March  11,  1872.     Am'd.  1873-4,  393. 

Cal.  Rep.  Cit.  136,  337;   136,  521;   139,  601. 


§  2095.     Form    may    be   varied  to    suit    witness'    belief. 

Whenever  the  court  before  which  a  person  is  offered  as  a 


757  GENERAL    PROVISIONS.  8S  ^096-2102 

witness  Is  satisfied  that  he  has  a  peculiar  mode  of  swear- 
ing, connected  with,  or  in  addition  to  the  usual  form  ol 
administration,  which,  in  his  opinion,  is  more  solemn  or 
obligatory,  the  court  may,  in  its  discretion,  adopt  that 
mode.     En.  March  11,  1872, 

Cal.  Rep.  Cit.    99,  569. 

§  2096.  Same.  When  a  person  is  sworn  who  believes 
in  any  other  than  the  Christian  religion,  he  may  be  sworn 
according  to  the  peculiar  ceremonies  of  his  religion,  11 
there  be  any  such.     En.  March  11,  1872, 

Cal.  Rep.  Cit.     99,  569. 

Prac.  Act,  sec,  444,    En.  April  29,  1851. 

§  2097.  Any  person  who  prefers  it  may  declare  or  af- 
firm. Any  person  who  desires  It  may,  at  his  option,  in- 
stead of  taking  an  oath,  make  his  solemn  affirmation  or 
declaration,  by  assenting,  when  addressed  in  the  following 
form:  "You  do  solemnly  affirm  (or  declare)  that,"  etc., 
as  in  section  two  thousand  and  ninety-four.  En.  March  11, 
1872. 

Prac.  Act,  sec.  445.     En.  April  29,  1851. 


CHAPTER  IV. 

GENERAL.    PROVISIONS. 

§  2101.  Questions  of  fact,   how  tried. 

\  ^102.  Questions  of  law   addressed   to  the   court. 

5  2103.  Questions  of  fact  by  court  or  referee. 

§  2104'.  Moneys  paid  Into  court. 

§  2101.  Questions  of  fact,  how  tried.  All  questions  of 
fact,  where  the  trial  Is  by  Jury,  other  than  those  mentioned 
in  the  next  section,  are  to  be  decided  by  the  jury,  and  all 
evidence  thereon  is  to  be  addressed  to  them,  except  when 
otherwise  provided  by  this  code.  En.  March  11,  1872. 
Am'd.  1873-4,  394. 

Effect  of  evidence,  for  jury:  Ante,  sec.  2061. 

Fraudulent  intent,  a  question  of  fact:  Civ.  Code,  sec. 
3442. 

§  2102.  Questions  of  law  addressed  to  the  court.  All 
questions  of  law,  including  the  admissibility  ol  testimony, 


§§  2103,   21M  OBINERAL    PROVISIONS.  168 

the  facts  preliminary  to  such  admission,  and  the  construc- 
tion of  statutes  and  other  writings,  and  other  rules  of  evi- 
dence, are  to  be  decided  by  the  court,  and  all  discussions 
of  law  addressed  to  it.  "Whenever  the  knowledge  of  the 
court  is,  by  this  code,  made  evidence  of  a  fact,  the  court 
is  to  declare  such  knowledge  to  the  jury,  who  are  bound 
to  accept  it.    En.  March  11,  1872. 

Cal.  Rep.  Clt.     118,  625. 

Knowledge  of  the  court— Scope  of  judicial  notice:  Ante, 
sec.  1875. 

§  2103.  Questions  of  fact  by  court  or  referee.  The  pro- 
visions contained  in  this  part  of  the  code  respecting  the 
evidence  on  a  trial  before  a  jury,  are  equally  applicable 
on  the  trial  of  a  question  of  fact  before  a  court,  referee, 
or  other  officer.     En.  March  11,  1872. 

§  2104.  Moneys  paid  into  court.  Whenever  moneys  are 
paid  into  or  deposited  in  court,  the  same  shall  be  delivered 
to  the  clerk  in  person,  or  to  such  of  his  deputies  as  shall 
be  specially  authorized  by  his  appointment  in  writing  to 
receive  the  same.  He  must,  unless  otherwise  directed  by 
law,  deposit  it  with  the  county  treasurer,  to  be  held  by  him 
subject  to  the  order  of  the  court.  The  treasurer  shall  keep 
each  fund  distinct,  and  open  an  account  with  each.  Such 
appointment  shall  be  filed  with  the  county  treasurer,  who 
shall  exhibit  it,  and  give  to  each  person  applying  for  the 
same  a  certified  copy  of  the  same.  It  shall  be  in  force  until 
a  revocation  in  writing  is  filed  with  the  county  treasurer, 
who  shall  thereupon  write  "revoked,"  in  ink  across  the 
face  of  the  appointment.    En.  Stats.  1873-4,  394. 

Cal.  Rep.  Cit.     51,  110;  56,  306;  73,  269;  133,  532. 

Corresponding  provision:  Ante,  sec.  573. 

The  foregoing  new  section,  and  many  of  the  foregoing 
amendments  to  the  Code  of  Civil  Procedure,  are  taken 
from  "An  act  to  amend  the  Code  of  Civil  Procedure,"  ap- 
proved March  24,  1874;  amendments  1873-4,  279.  The 
amendatory  act  contained  two  other  sections,  in  reference 
to  the  effect  of  the  new  provisions,  as  follows: 

Repealing  clause — Rights  preserved. 

Sec.  253.  All  provisions  of  law  inconsistent  with  the 
provisions  of  this  act  are  hereby  repealed;  but  no  rights 
acquired,  or  proceedings  taken   under,   the   provisions  re- 


759  GENERAL,    PROVISIONS.  J  2104 

pealed  shall  be  impaired,  or  in  any  manner  affected  by 
this  repeal;  and  whenever  a  limitation  or  period  of  time 
prescribed  by  such  repealed  provisions  for  acquiring  a 
right  or  barring  a  remedy,  or  for  any  other  pupose,  has 
begun  to  run  before  this  act  takes  effect,  and  the  same  or 
any  other  limitation  is  prescribed  by  this  act,  the  time 
which  shall  have  run  when  this  act  takes  effect  shall  be 
deemed  part  of  the  time  prescribed  by  this  act. 

Sec.  254.     This  act  takes  effect  on  the  first  day  jof   July, 
eighteen  hundred  and  seventy-four. 


APPENDIX. 


APPEALS. 

An  act  to  provide  for  the  taking  of  appeals  from  Judg- 
ments or  orders  given  or  made  in  the  courts  existing 
on  and  before  the  first  day  of  January,  eighteen  hun- 
dred and  eighty.  (Approved  April  3,  1880,  Stats.  1880, 
p.  24  (Ban.  ed.,  p.  121).] 
The  purpose  of  the  act    suflBciently    appears    from    the 

title. 


BONDS. 
An  act  to  facilitate  the  giving  of  bonds  required  by  law. 

§  1.  Incorporations  for  giving  bonds. 
§  2.  When  corporation  not  accepted. 
§  3.     Duty   of  insurance  commis^oner. 

Incorporations  for  giving  bonds. 

Section  1.  Whenever  any  person  who  now  or  hereafter 
may  be  required  or  permitted  by  law  to  make,  execute, 
and  give  a  bond  or  undertaking,  with  one  or  more  sure- 
ties, conditioned  for  the  faithful  performance  of  any  duty, 
or  for  the  doing  or  not  doing  of  anything  in  said  bond  or 
undertaking  specified,  any  head  of  department,  board, 
court,  judge,  oflBcer,  or  other  person  who  is  now  or  shall 
hereafter  be  required  to  approve  the  suflSciency  of  any  snch 
bond  or  undertaking,  or  the  sureties  thereon,  may  accept 
as  sole  and  suflBcient  surety  on  such  bond  or  undertaking 
any  corporation  incorporated  under  the  laws  of  any  state 
of  the  United  States  for  the  purpose  of  making  or  guaran- 
teeing bonds  and  undertakings  required  by  law,  and  which 
shall  have  complied  with  all  the  requirements  of  the  laws 
of  this  state  regulating  the  admission  of  such  corporation 
to  transact  such  business  in  this  state;  and  all  such  cor- 
porations are  hereby   vested   with   full  power  and  authority 

Ofii) 


762  APPENDIX. 

to  make  and  guarantee  such  bonds  and  undertakings,  and 
shall  be  subject  to  all  the  liabilities  and  entitled  to  all 
the  rights  of  natural  persons  sureties. 

When  corporation  not  accepted. 

Sec.  2.  It  is  further  provided  that  the  guaranty  of  any 
such  company  shall  not  be  accepted  by  heads  of  depart- 
ments or  others,  as  provided  in  section  one  of  this  act, 
whenever  its  liabilities  shall  exceed  its  assets,  as  ascer- 
tained in  the  manner  provided  in  section  three  of  this 
act. 

Duty  of  insurance  commissioner. 

Sec.  3.  "Whenever  the  liabilities  of  any  such  company 
shall  exceed  its  assets,  the  insurance  commissioner  shall 
require  the  deficiency  to  be  paid  up  within  sixty  days, 
and  if  it  is  not  so  paid  up,  then  he  shall  issue  a  certificate 
showing  the  extent  of  such  deficiency,  and  he  shall  pub- 
lish the  same  once  a  week  for  three  weeks  in  a  daily  San 
Francisco  paper,  and  thenceforth,  and  until  such  defi- 
oieny  is  paid  up,  such  company  shall  not  do  busine.ss 
under  the  provisions  of  this  act.  And  in  estimating  the 
condition  of  any  such  company,  under  the  provisions  of 
this  act,  the  commissioner  shall  allow  as  assets  only  such 
as  are  authorized  under  existing  laws  at  the  time,  and 
shall  charge  as  liabilities,  in  addition  to  eighty  per  cent 
of  the  capital  stock,  all  outstanding  indebtedness  of  the 
company,  and  a  premium  reserve  equal  to  fifty  per  centum 
of  the  premiums  charged  by  said  company  on  all  risks 
then  in  force.  Nothing  herein  contained  shall  apply  to 
bonds  given  in  criminal  cases. 

Sec.  4.  This  act  shall  take  effect  immediately.  [Ap- 
proved March  12,  1885;    1885,  114.] 


COSTS. 


An   act  concerning  the   costs   in   civil   actions  for   serving 
summonses   and   subpoenas. 

Section  1.  In  all  civil  actions,  when  a  summons  oi  sub- 
poena is  served  by  a  person  other  than  the  sheriff,  the 
person  so  serving  shall  be  allowed  by  the  court  issuing 
the  process  such  sum  as  the  court  may  think  proper,  not 
exceeding  the  amount  allowed  sheriffs  by   law. 


COSTS— COURTS.  763 

Sec.  2.  This  act  shall  take  effect  from  and  after  its 
passage.     [Approved    March    10,    1891;    Stats.    1891,    p.    56.] 

Act  concerning  costs  in  actions  of  libel  and  slander:  See 
post,  title  Libel. 


COURTS. 

Supreme  court  commission  was  created  originally  by  the 
act  of  March  12,  1885.  It  consisted  of  three  members  to 
hold  for  four  years.  In  1889  the  commission  was  enlarged 
to  five  members  to  hold  for  two  years.  The  commission 
has  been  re-created  by  act  of  the  legislature  every  two 
years  since  that  time. 

The  commission  was  continued  by  the  act  of  March  18, 
1903:    Stats.  1903,  ch.  161. 

An  act  to  provide  that  in  all  cities  of  over  ten  thousand 
inhabitants,  the  mayor,  or  other  chief  executive,  shall 
not  be  required  to  act  as  city  judge,  or  ex  officio 
judge  of  the  city  court,  or  as  justice  of  the  peace;  to 
provide  for  the  abolishment  of  such  city  court,  and 
for  the  transfer  of  the  business  and  properties  of 
said  city  court  to  the  justice  of  the  peace  of  such  cit- 
ies, and  to  require  such  justice  to  finish  such  business, 
and  to  repeal  all  special  acts  in  conflict  herewith. 

§  1.    Duties   of  mayor. 

§  2.     Transfer  of   books,    etc.,    to  justice. 

Duties  of  mayor. 

Section  1.  In  cities  of  over  ten  thousand  inhabitants, 
the  mayor,  or  other  chief  executive  thereof,  shall  not  be 
required  to  act  as  justice  of  the  peace,  or  to  hold  a  city 
court,  or  to  act  as  ex  officio  city  judge,  or  to  perform  any 
of  the  duties  of  judge  of  the  city  courts;  and  all  city  courts 
created  by  law  to  be  held  by  such  mayor,  or  other  chief 
executive  of  such  cities,  are  hereby  abolished. 

Transfer  of  books,  etc.,  to  justice  of  the  peace. 

Sec.  2.  All  books,  dockets,  files,  documents,  papers,  and 
properties  of  every  kind  whatsoever  belonging  to  such 
city  court,  shall  be  transferred  to  the  justice  of  the  peace 
of  said  city,  provided  for  by  law,  to  hold  the  police  court 
of  such  city,  or  if  there  be  no  such  police  court  therein, 


764  APPENDIX. 

then  to  such  justice  of  the  peace  therein  as  may  be  desig- 
nated  for  such  purpose  by  the  mayor  theroof;  and  sufli 
justice  of  the  peace  shall  have  jurisdiction  of  all  matters 
heretofore  brought  in  such  city  court,  or  of  which  said 
city  court  had  jurisdiction;  and  it  shall  be  his  duty  to 
collect  all  fines  and  charges  required  by  law  to  be  col- 
lected by  such  city  court,  and  to  account  for  and  pay  the 
same  over  to  the  treasurer  of  said  city  in  the  same  man- 
ner, and  at  the  same  times  and  under  such  terms  and 
conditions,  as  heretofore  required  of  and  by  said  city 
court.  Said  justice  of  the  peace  shall  complete  all  such 
unfinished  business  as  may  be  transferred  to  him  from 
said  city  court  under  the  provisions  hereof.  In  the  same 
manner  as  heretofore  required  of  said  city  court. 

Sec.  3.  The  provisions  of  all  acts  and  every  special  act 
of  the  legislature  which  conflict  in  any  wise  with  this  act 
are  each  and  every  one  hereby  repealed. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  at 
once  after  its  passage.  [Approved  March  8,  1887;  Stats. 
1887,  51.] 

An  act  to  confer  upon  the  superior  court  of  each  county, 
and  the  judge  thereof,  the  powers  heretofore  pos- 
sessed by  the  district,  county,  and  probate  courts  of 
such  county,  and  the  judges  thereof.  [Approved 
April  3,  1880;    Stats.  1880,  p.  23   (Ban.  ed.,  115).] 

The  object  of  this  act  sufficiently  appears  from  its  title. 

An  act  authorizing  the  judges  of  the  superior  court  in 
all  counties,  and  cities  and  counties,  having  a  popula- 
tion of  two  hundred  thousand  inhabitants  and  over, 
to  appoint  a  secretary. 

Section  1.  In  all  counties,  and  cities  and  counties,  hav- 
ing a  population  of  two  hundred  thousand  inhabitants 
and  over,  the  judges  of  the  superior  court  in  such  coun- 
ties, and  cities  and  counties,  may  appoint  a  secretary, 
who  shall  receive  a  salary  of  one  hundred  and  fifty  (?150) 
dollars  per  month,  and  hold  office  at  their  pleasure,  and 
shall  perform  such  duties  as  may  be  required  of  him  by 
the  court  or  the  judges  thereof.  Said  salary  shall  be 
audited,  allowed,  and  paid  out  of  the  general  fund  of  such 
counties,  and  cities  and  counties. 

Sec.  2.  This  act  shall  take  effect  from  and  after  Its 
passage.     [Approved   March   26,   1895;    Stats.   1895,   98.] 


An  act  to  provide  one  additional  judge  of  the  superior 
court  of  the  county  of  Alameda.  [Approved  February 
13,  1893;    Stats.  1893,  3.] 

An  act  to   provide  one  additional   judge   of   the   superior 
court  of  the  county  of  Alameda.     [Approved  March  14, 
1901;    Stats.  1901,  295.] 
This  act  increased  the  number  of  judges  from  four  to 

five. 

An  act  to  increase  the  number  of  judges  of  the  superior 
court  of  the  county  of  Fresno,  state  of  California,  and 
for  the  appointment  of  an  additional  judge.  [Ap- 
proved March  8.  1887;    Stats.  1887,  p.  57.] 

An  act  to  facilitate  the  disposition  of  business  in  the  su- 
perior court  of  Fresno  County,  by  the  appointment  and 
election  of  a  third  judge  of  said  court.  [Act  approved 
March  10,  1893;   Stats.  1893,  p.  125.] 

An  act  to  reduce  the  number  of  judges  of  the  superior 
court  of  the  county  of  Fresno  from  three  to  two.  [Ap- 
proved March  26,  1895;    Stats.  1895,  p.  156.] 

An  act  to  provide  for  the  appointment  and  election  of  one 
additional  judge  for  the  county  of  Humboldt.  [Ap- 
proved March  8,  1895;   Stats.  1895,  p.  27.] 

An  act  to  increase  the  number  of  judges  of  the  superior 

court  of  the  county  of  Los  Angeles,  state  of  California, 

and   for   the    appointment    of    such    additional   judges. 

[Approved   March   11,  1889;    Stats.   1889,  p.  130.] 

This  act  increased  the  number  of  judges  in  Los  Angeles 

County  from  four  to  six. 

In  1887  the  legislature  increased  the  number  of  judges 
in  Los  Angeles  from  two  to  four.     [Stats.  1887,  p.  7.] 

An  act  to  provide  an  additional  judge  of  the  superior  court 
for   the  county   of  Mono.     [Stats.   1880,  p.  99.] 
This  act  was  repealed   March  9,   1883.     [Stats.   1883,  p. 
62.] 

An  act  to  provide  one  additional  judge  of  the  superior 
court  of  Mono  County.  [Approved  February  17,  1903; 
Stats.  1903,  ch.  28.] 

An  act  to  provide  one  additional  judge  of  the  superior 
court  of  the  county  of  Sacramento.  [Approved  March 
12,   1895;    Stats.   1895,  p.  48.] 


7«fi  APPENDIX. 

An  act  to  provide  an  additional  judge  of  the  superior 
court  of  the  county  of  San  Bernardino.  [Approved 
March  5,  1887;  Stats.  18S7,  p.  19.] 

An  act  to  increase  the  number  of  judges  of  the  superior 

court  of  the  county  of  San  Diego,  state  of  California, 

and  for    the    appointment  of    such    additional    judges. 

[Approved  February  8,  18S9;   Stats.  1889,  p.  5.] 

This   act  increased   the  number  of  judges   from  one  to 

three.     The   act   of   March    5,    1895,    (Stats.   1895,   p.    24) ; 

afterwards  reduced  the  number  of  judges  to  two. 

An  act  providing  for  an  additional  superior  judge  for  the 
county  of  San  Luis  Obispo,  and  providing  for  his  ap- 
pointment and   salary.     [Approved   February   8,   1889; 
Stats.  1889,  p.  6.] 
This  act  increased   the   number  of  judges  from  one  to 

two.     By  the  act  of  1889,  p.  333,  approved  March  19,  1889, 

the  number  was  reduced  to  one. 

An  act  to  increase  the  number  of  judges  of  the  superior 
court  of  the  county  of  Santa  Clara,  and  to  provide  for 
the  appointment  of  an  additional  judge.  [Approved 
February  16,  1897;  Stats.  1897,  p.  7.  In  effect  imme- 
diately.] 
This  act  increased  the  number  of  judges  from  one  to  two. 

An  act  providing  for  the  election  or  appointment  of  a  sepa- 
rate judge  of  the  superior  court  for  each  of  the  coun- 
ties of  Yuba  and  Sutter,  and  fixing  and  providing  for 
the  payment  of  the  salary  of  each  of  such  judges.  [Ap- 
proved March  2,  1897;   Stats.  1897,  p.  48.] 

A  bill  to  increase  the  number  of  judges  of  the  superior 
court  of  the  county  of  Tulare,  and  to  provide  for  the 
appointment  of  an  additional  judge.     [Approved  March 
10,   1891;    Stats.   1891,   p.   61.] 
This  act  increased  the  number  of  judges  from   one  to 
two.     Afterwards,  by  the  act  of  March  26,  1895,  the  num- 
ber was  reduced  to  one.     [Stats.  1895,  p.  128.] 


ESTA'lES   OF   DECH1A.SEI>   PERSONS.  167 


ESTATES  OF  DECEASED  PERSONS. 

§  1.     Right  to  collect  deposit. 
§  2.     Power   of  bank. 

An  act  to  amend  an  act  entitled  "An  act  to  authorize  the 
husband  or  wife,  or  next  of  kin,  of  a  deceased  person, 
to  collect  and  receive  of  any  savings  bank  any  deposit 
in  such  bank  when  the  same  does  not  exceed  the  sum 
of  three  hundred  dollars,"  approved  February  18, 
1874.     [Stats.   1895,  32.] 

Section  1.  Section  one  of  said  act  is  hereby  amended 
BO  as  to  read  as  follows: 

Section  1.  The  surviving  husband  or  wife  of  any  de- 
ceased person,  or  if  no  husband  or  wife  be  living,  then  the 
next  of  kin  of  such  decedent,  may,  without  procuring  let- 
ters of  administration,  collect  of  any  bank  any  sum  which 
said  deceased  may  have  left  on  deposit  in  such  bank  at 
the  time  of  his  or  her  death;  provided,  said  deposit  shall 
not  exceed  the  sum  of  five  hundred  dollars. 

Sec.  2.  Section  two  of  said  act  is  hereby  amended  so  as 
to  read  as  follows: 

Section  2.  Any  bank,  upon  receiving  an  affidavit  stat- 
ing that  said  depositor  is  dead,  and  that  affiant  is  the  sur- 
viving husband  or  wife,  as  the  case  may  be,  or  stating 
that  said  decedent  left  no  husband  or  wife,  and  that  affi- 
ant is  next  of  kin  of  said  decedent,  and  entitled  to  dis- 
tribution, and  that  the  whole  amount  that  decedent  left 
on  deposit  in  any  and  all  banks  of  deposit  in  this  state 
does  not  exceed  the  sum  of  five  hundred  dollars,  may  pay 
to  said  affiant  any  deposit  of  said  decedent,  if  the  same 
does  not  exceed  the  sum  of  five  hundred  dollars,  and  the 
receipt  of  such  affiant  shall  be  a  sufficient  acquittance 
therefor. 

Sec.  3.  Any  person  who  shall  make  a  false  affidavit  in 
regard  to  the  matters  specified  in  this  act,  shall  be 
deemed  to  be  guilty  of  perjury. 

Sec.  4.  This  act  shall  take  effect  from  and  after  its 
passage. 

[Became  a  law,  under  constitutional  provision,  without 
governor's  approval,  March  8,  1895.  The  original  act 
was  the  same  except  that  the  amount  was  ?300.] 


f68  APPENDIX. 

An  act  supplementary  to  an  act  entitled  an  act  to  regulate 
the  settlement  of  the  estates  of  deceased  persons, 
passed  May  first,  eighteen  hundred  and  fifty-one. 

Section  1.  When  it  shall  appear,  upon  the  settlement 
of  the  accounts  of  any  executor  or  administrator,  that 
debts  against  the  deceased  have  been  paid  without  the 
afTidavit  and  allowance  prescribed  by  section  one  hundred 
and  thirty-one  of  the  act  to  which  this  act  is  supplement- 
ary, and  it  shall  be  proven  by  competent  evidtnce  to  the 
satisfaction  of  the  probate  courts  that  such  debts  wore 
justly  due,  were  paid  in  good  faith,  that  the  amount  paid 
was  the  true  amount  of  such  indebtedness  over  and  above 
all  payments  of  set-offs,  and  that  the  estate  is  solvent,  it 
shall  be  the  duty  of  the  said  court  to  allow  the  said  sums 
so  paid  in  the  settlement  of  said  accounts. 

Sec.  2.  This  act  shall  go  into  effect  from  and  after  its 
passage.     [Approved   March   30,   1872;    1871-2,   696.] 

This  act  was  superseded  by  section  1632  of  the  Code  of 
Civil  Procedure,  ante. 

An  act  authorizing  certain  corporations  to  act  as  execu- 
tor and  in  other  capacities,  and  to  provide  for  and 
regulate  the  administration  of  trusts  by  such  corpor- 
ations. 

[Approved   April   6,   1891;    Stats.    1891,     p.     490;     amended 
1897,   p.  424.] 

§    1.  What  corporations  may   act   as  executor. 

§     2.  Deposits  made  with  corporation. 

§    3.  Public   administrator   may   malte  -deposita. 

§     4.  Court   may   order  deposit  and  reduce   bondfi. 

§     5.  Responsible   for   Investments. 

§    6.  Interest. 

§    7.  Deposit    of   bonds   with   state   treasvner. 

§    8.  May  mortgage  real  estate. 

§    9.  Deposit,    increase,    and   decrease    of. 

§  10.  Abstracts  of  title. 

§  11.  Certificate   of   authority. 

8  12.  Semi-annual  statement. 

§  13.  Verification    of   statement. 

§  14.  Duty   of   bank   commissioners. 

§  15.  No  section. 

§  16.  Administering   oaths   and    examining   witnesses. 

§  17.  Duty   when  corporation   violates  law. 

§  18.  False  statement   revokes   authority. 

§  19.  Retirement   from   business. 

Section  1.  Any  corporation  which  has  or  shall  be  in- 
corporated  under   the   general    incorporation    laws   of   this 


ESTATES  OF  DECEASED   PERSONS.  769 

state,  authorized  by  its  articles  of  incorporation  to  act  as 
executor,  administrator,  guardian,  assignee,  receiver,  de- 
positary, or  trustee,  and  having  a  paid-up  capital  of  not 
less  than  two  hundred  and  fifty  thousand  dollars,  of  which 
one  hundred  thousand  dollars  shall  have  been  actually  paid 
in,  in  cash,  may  be  appointed  to  act  in  such  capacity  in 
like  manner  as  individuals.  In  all  cases  in  which  it  is 
required  that  an  executor,  administrator,  guardian,  as- 
signee, receiver,  depositary,  or  trustee,  shall  qualify  by 
taking  and  subscribing  an  oath,  or  in  which  an  afiidavit  is 
required,  it  shall  be  a  sufficient  qualification  by  such  cor- 
poration if  such  oath  shall  be  taken  and  subscribed  or  such 
affidavit  made  by  the  president  or  secretary  or  manager 
thereof,  and  such  officer  shall  be  liable  for  the  failure  of 
such  corporation  to  perform  any  of  the  duties  required 
by  law  to  be  performed  by  individuals  acting  in  like  capa- 
city and  subject  to  like  penalties;  and  such  corporation 
shall  be  liable  for  such  failure  to  the  full  amount  of  its 
capital  stock;  provided,  any  such  appointment  as  guardian 
shall  apply  to  the  estate  only,  and  not  to  the  person.  Such 
corporations  shall  be  entitled  to  and  shall  be  allowed 
proper  compensation  for  all  the  services  performed  by 
them  under  the  foregoing  provisions  of  this  act;  but  such 
compensation  shall  not  exceed  that  allowed  to  natural  per- 
sons for  like  services. 

Sec.  2.  Any  court,  having  appointed  and  having  juris- 
diction of  any  executor,  administrator,  guardian,  assignee, 
receiver,  depositary,  or  trustee,  upon  the  application  of 
such  officer  or  trustee,  or  upon  the  application  of  any 
person  having  an  interest  in  the  estate  administered  by 
such  officer  or  trustee,  after  notice  to  the  other  parties  in 
interest,  as  the  court  may  direct,  and  after  a  hearing  upon 
such  application,  may  order  such  officer  or  trustee  to  de- 
posit any  moneys  then  in  his  hands,  or  which  may  come 
into  his  hands  thereafter,  and  until  the  further  order  of 
said  court,  with  any  such  corporation,  and  upon  deposit  of 
such  money  and  its  receipt  and  acceptance  by  such  cor- 
poration the  said  officer  or  trustee  shall  be  discharged 
from  further  care  or  responsibility  therefor.  Such  deposits 
shall  be  paid  out  only  upon  the  orders  of  said  court. 

Sec.  3.  And  it  shall  be  lawful  for  any  public  adminis- 
trator to  deposit  with  any  such  corporation  doing  business 

Code  Civil  Proc — 49. 


no  APPENDIX. 

in  the  county  or  city  and  county,  in  which  he  is  acting  aa 
such  administrator  any  and  all  moneys  of  any  estate  upon 
which  he  is  administering,  not  required  for  the  current 
expenses  of  the  administration.  And  such  deposits  shall 
relieve  the  public  administrator  from  depositing  with  the 
county  treasurer  the  moneys  so  deposited  with  such  cor- 
poration. Moneys  deposited  by  a  public  administrator  may 
be  drawn  upon  the  order  of  such  administrator,  counter- 
signed by  a  judge  of  a  superior  court,  when  required  for 
the  purpose  of  administration  or  otherwise. 

Sec.  4.  Whenever,  in  the  judgment  of  any  court  having 
jurisdiction  of  any  estate  in  process  of  administration  by 
any  executor,  administrator,  guardian,  assi-gnee,  receiver, 
depositary,  or  trustee,  the  bond  required  by  law  of  such 
officer  shall  seem  burdensome  or  excessive,  upon  applica- 
tion of  such  officer  or  trustee,  and  after  such  notice  to 
the  parties  in  interest,  as  the  court  shall  direct,  and  after 
a  hearing  on  such  application,  the  said  court  may  order 
the  said  officer  or  trustee  to  deposit  with  any  such  cor- 
poration, for  safe  keeping,  such  portion  or  all  of  the  per- 
sonal assets  of  said  estate  as  it  shall  deem  proper;  and 
thereupon  said  court  shall,  by  an  order  of  record,  reduce 
the  bond  to  be  given  or  theretofore  given  by  such  officer 
or  trustee,  so  as  to  cover  only  the  estate  remaining  in 
the  hands  of  said  officer  or  trustee;  and  the  property  as 
deposited  shall  thereupon  be  held  by  said  corporation, 
under  the  orders  and  directions  of  said  court.  Any  court 
having  jurisdiction  of  an  estate  being  administered  by  a 
public  administrator  may  direct  such  public  administrator 
to  deposit  all  or  any  part  of  the  moneys  of  the  estate  not 
required  for  the  current  expenses  of  the  administration, 
with  any  such  corporation  doing  business  in  the  county  or 
city  and  county  where  such  public  administrator  is  acting. 

Sec.  5.  Such  corporations  shall  not  be  required  to  give 
any  bond  or  security  in  case  of  any  appointment  herein- 
before provided  for,  except  as  hereinafter  provided,  but 
shall  be  responsible  for  all  investments  which  shall  be 
made  by  it  of  tba  funds  which  may  be  intrusted  to  it  for 
investment  by  ^tec.  court,  and  shall  be  further  liable  as 
natural  persons  in  like  positions  now  are,  and  as  herein- 
after provided.  The  amount  of  money  which  any  such 
corporation   shall   have  ou   deposit  at  any  time   shall   not 


ESTATES   OF   DECEASED   PERSONS.  "l 

exceed  ten  times  the  amount  of  its  paid-up  capital  and 
surplus,  and  its  outstanding  loans  shall  not  at  any  time 
exceed  said  amount. 

Sec.  6.  Such  corporations  shall  pay  interest  upon  all 
moneys  held  by  them  by  virtue  of  this  act,  at  such  rate  as 
may  be  agreed  upon  at  the  time  of  its  acceptance  of  any 
such  appointment,  or  as  shall  be  provided  by  the  order  of 
the  court. 

Sec.  7.  Each  corporation,  before  accepting  any  such 
appointment  or  deposit,  shall  deposit  with  the  treasurer 
of  state,  for  the  benefit  of  the  creditors  of  said  corpora- 
tion, the  sum  of  one  hundred  thousand  dollars  (.$100,000.00), 
in  bon-ds  of  the  United  States,  or  municipal  bonds  of  this 
state,  or  of  any  county,  or  city,  or  school  district  thereof, 
or  in  mortgages  on  improved  and  productive  real  estate  in 
this  state,  being  first  liens  thereon,  and  the  real  estate 
being  worth  at  least  twice  the  amount  loaned  thereon. 
The  bonds  and  securities  so  deposited  may  be  exchanged 
from  time  to  time  for  other  securities,  receivable  as  afore- 
said. Said  bonds  of  the  United  States,  or  municipal  bonds 
of  this  state,  or  of  any  county,  city,  or  school  district 
thereof,  to  be  registered  in  the  name  of  said  treasurer, ' 
officially,  and  all  said  securities  to  be  subject  to  sale  and 
transfer,  and  to  the  disposal  of  the  proceeds  by  said  treas- 
urer, only  on  the  order  of  a  court  of  competent  jurisdiction, 
and  as  hereinafter  provided.  [Amendment,  approved  April 
1,  1897;  Stats.  1897,  p.  424.] 

Sec.  8.  Any  such  corporation,  having  a  paid-up  capital 
in  excess  of  two  hundred  and  fifty  thousand  dollars,  may 
be  permitted  by  the  board  of  bank  commissioners  to  mort- 
gage any  improved  and  productive  real  estate  owned  by 
it,  in  excess  of  said  amount,  to  the  treasurer  of  state,  for 
such  sum  as  the  said  board  may  determine;  and  such  mort- 
gage may  be  deposited  with  said  treasurer,  and,  when  so 
deposited,  it  shall  be  included  in  the  amount  of  securities, 
hereinabove  required  to  be  deposited  with  said  treasurer 
for  the  benefit  of  the  creditors  of  said  corporation. 

Sec.    9.  So   long   as    the   corporation   so   depositing  shall 

continue   solvent,   such   corporation   shall   be  permitted   to 

.  receive   from   said   treasurer  the   interest  or  dividends   on 

said  deposit;   provided,  however,  that  when  it  shall  appear 

to  the  board  of  bank  commissioners,  from  the  semi-annual 


T72  APPENDIX. 

report  of  any  such  corporation,  that  the  value  of  the  per- 
sonal property  and  cash  held  and  possessed  by  such  cor- 
poration, by  virtue  of  the  provisions  of  this  act  and  any 
amendment  thereof,  exceeds  ten  times  the  amount  of  the 
deposit  aforesaid,  said  board  shall  require  said  corporation 
to  forthwith  increase  its  said  deposit  to  the  sum  of  five 
hundred  thousand  dollars  in  such  securities.  And  when- 
ever it  shall  appear  to  said  board  that  the  amount  of  per- 
sonal property  and  cash  so  held  by  any  such  corporation 
has  been  reduced  below  ten  times  the  value  of  its  original 
deposit  above  provided  for,  and  said  corporation  Is  not  in 
any  default  in  its  duties  and  obligations  hereunder,  they 
shall  allow  such  corporation  to  reduce  its  said  deposit  to 
the  sum  of  two  hundred  thousand  dollars,  by  the  with- 
drawal of  such  additional  deposit,  until  such  time  as  an 
increase  in  its  holdings  shall  again  require  an  additional 
deposit,  as  hereinbefore  provided. 

Sec.  10.  When  any  part  of  such  deposit  Is  made  in 
bonds  and  mortgages,  it  shall  be  accompanied  by  full  ab- 
stracts of  titles  and  searches,  and  shall  be  examined  and 
approved  by  or  under  the  direction  of  the  said  board.  The 
fees  for  an  examination  of  title  by  counsel,  to  be  paid  by 
■  the  corporation  making  the  deposit,  shall  not  exceed 
twenty  dollars  for  each  mortgage,  and  the  fee  for  each 
appraiser,  not  exceeding  two,  besides  expenses,  shall  be 
five  dollars  for  each  mortgage. 

Sec.  11.  It  shall  not  be  lawful  for  any  such  corporation 
to  accept  any  trust  or  deposit,  as  hereinbefore  provided, 
after  the  passage  of  this  act  without  first  procuring  from 
the  board  of  bank  commissioners  a  certificate  of  authority, 
stating  that  such  corporation  has  complied  with  the  re- 
quirements of  this  act  in  respect  to  such  deposit. 

Sec.  12.  Such  corporation  shall  file  with  the  said  board 
of  bank  commissioners,  during  the  months  of  January  and 
July  of  each  year,  a  statement,  under  oath,  of  the  condition 
of  such  corporation  at  the  close  of  business  on  the  thirty- 
first  day  of  December  and  the  thirtieth  day  of  June,  re- 
spectively, next  preceding,  showing  its  financial  condition. 
Also,  a  list  and  brief  description  of  the  trusts  held  by  such 
corporation,  the  source  of  the  appointment  thereto,  and  the 
amount  of  real  and  personal  estate  held  by  such  corpora- 
tion by  virtue    thereof,  except  that  mere  mortgage  trusts, 


ESTATES   OF   DECEASED    PERSONS.  TO 

wherein  no  action  lias  been  taken  by  such  corporation, 
shall  not  be  included  in  such  statement.  The  said  state- 
ment shall  also  be  in  such  form,  and  contain  such  reports, 
returns,,  and  information,  as  to  the  affairs,  business,  condi- 
tion, and  resources  of  the  corporation,  as  the  said  board 
may  from  time  to  time  prescribe  and  require. 

Sec.  13.  Such  statement  shall  be  verified  by  the  atli- 
davit  of  one  of  the  managing  officers  and  two  of  the  direct- 
ors or  trustees  of  such  corporation,  who  shall  also  state 
in  such  affidavit  that  they  have  examined  the  assets  and 
books  of  such  corporation  for  the  purpose  of  making  such 
statement.  Any  false  swearing  in  regard  to  such  state- 
ment shall  be  deemed  perjury,  and  shall  be  subject  to  the 
punishment  prescribed  by  law  for  such  offense. 

Sec.  14.  The  said  board  of  bank  commissioners  are 
hereby  authorized  and  empowered  to  address  any  inquiries 
to  any  such  corporation,  or  the  officers  thereof,  in  relation 
to  its  doings  and  conditions,  or  any  other  matter  connected 
with  its  affairs;  and  it  shall  be  the  duty  of  any  such  cor- 
poration or  person  so  addressed  to  promptly  reply,  in 
writing,  to  such  inquiries;  and  they  may  also  require  re- 
ports from  any  such  corporation  at  any  time  they  may 
deem  desirable.  It  shall  be  the  duty  of  one  or  more  of 
the  bank  commissioners,  as  designated  by  the  commission- 
ers, annually,  or  as  often  as  in  their  judgment  they  may 
deem  it  necessary,  without  previous  notice,  to  visit  and  to 
make  personal  examination  of  the  solvency  of  any  such 
corporation,  its  ability  to  fulfill  all  its  obligations,  and 
report  its  condition  to  the  attorney-general  as  soon  as  may 
be  after  such  examination. 

Sec.  16.  Such  commissioners  shall  have  power  to  ad- 
minister an  oath  to  any  person  whose  testimony  may  be 
required  on  any  such  examination,  and  to  compel  the 
appearance  and  attendance  of  any  such  person,  for  the 
purpose  of  examination,  by  summons,  subpoena,  or  attach- 
ment, in  the  manner  now  authorized  in  respect  to  the 
attendance  of  persons  as  witnesses  in  courts  of  record  In 
this  state;  and  all  books  and  papers  which  may  be  deemed 
necessary  to  examine  by  the  commissioners  shall  be  pro- 
duced, and  their  production  may  be  compelled  in  like 
manner. 

Sec.  17.  Whenever  It  shall  appear  to  the  board  of  bank 
commissioners,  from  any  such  examination  or  report,  that 


774  APrE.NDIX. 

any  such  corporation  has  committed  any  violation  of  law, 
or  is  conducting  its  business  in  an  unsafe  or  unauthorized 
manner,  they  shall,  by  an  order  under  their  hands,  direct 
the  discontinuance  of  such  illegal  and  unsafe  or  unauthor- 
ized practice,  and  strict  conformity  with  the  requirements 
of  the  law,  and  with  safety  and  security  in  its  transactions; 
and  whenever  any  such  corporation  shall  refuse  or  neglect 
to  make  any  such  report  as  hereinbefore  required  or  to 
comply  with  any  such  order  as  aforesaid,  or  whenever  ll 
shall  appear  to  the  said  board  that  it  is  unsafe  or  inexpe- 
dient for  any  such  corporation  to  continue  to  transact 
business,  they  shall  communicate  the  facts  to  the  attorney- 
general,  who  shall  thereupon  institute  such  proceedings 
against  the  corporation  as  the  nature  of  the  case  may  re- 
quire. 

Sec.  18.  If  the  board  of  bank  commissioners  shall  at 
any  time  have  satisfactory  evidence  that  any  semi-annual 
statement  or  other  report  required  or  authorized  by  this 
act,  made  or  to  be  made  by  any  officer  or  officers  of  such 
corporation,  is  false,  it  shall  be  the  duty  of  the  said  board 
to  immediately  revoke  the  certificate  of  authority  granted 
on  behalf  of  such  corporation  and  mail  a  copy  of  such 
revocation  to  said  corporation  and  to  the  clerk  of  every 
court  of  record  in  this  state.  Such  revocation  shall  not  be 
set  aside  until  satisfactory  evidence  shall  be  given  to  said 
board  of  banc  commissioners  that  such  corporation  is  in 
substance  and  in  fact  in  the  condition  set  forth  in  such 
statement  or  report,  and  that  all  the  requirements  of  this 
act  have  been  complied  with.  Such  revocation  shall  be 
sufficient  cause  for  the  removal  of  such  corporation  from 
any  appointment  held  by  it  under  the  provisions  of  this 
act. 

Sec.  19.  Any  corporation  which  desires  to  retire  from 
business  under  this  act  shall  furnish  to  the  board  of  bank 
commissioners  satisfactory  evidence  of  its  release  and 
discharge  from  all  the  obligations  and  trusts  hereinbefore 
provided  for;  whereupon  they  shall  revoke  their  certificate 
to  such  corporation,  and  thereupon  the  treasurer  of  state 
shall  return  to  said  corporation  all  its  securities. 

Sec.  20.  All  laws  and  parts  of  laws  in  conflict  with  tiie 
provisions  of  this  act  are  hereby  repealed. 


INTERPRETERS.  775 

Sec.  21.    This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage. 


INTERPRETERS, 

An  act  to  authorize  the  appointment  of  an  interpreter  of 
the  Italian  language  and  dialects,  in  criminal  proceed- 
ings, in  cities,  and  cities  and  counties,  of  one  hundred 
thousand  inhabitants.  » 

S  1.    Appointment  of  Interpreter. 
I  2.     Salary. 
§  3.    Repeal. 

Section  1.  In  all  cities  and  cities  and  counties  of  over 
one  hundred  thousand  inhabitants,  where  an  interpreter 
of  tLe  Italian  language  is  necessary,  it  shall  be  the  duty 
of  the  mayor  and  police  judge  of  such  city,  or  city  and 
county,  and  of  the  judge  of  the  superior  court  of  said  city 
and  county,  or  of  the  county  in  which  said  city  is  situated, 
or  where  there  are  more  judges  than  one,  then  it  shall  be 
the  duty  of  the  presiding  judge  of  said  superior  court,  and 
the  presiding  judge  of  the  police  court  and  the  mayor,  to 
appoint  an  interpreter  of  the  Italian  language,  who  must 
be  able  to  interpret  the  Italian  language  and  dialects  into 
the  English  language,  to  be  employed  in  criminal  pro- 
ceedings when  necessary  in  said  cities,  or  cities  and 
counties.  [Amendment  approved  March  9,  1895;  Stats. 
1895,  p.  37.] 

Sec.  2.  The  said  interpreter  shall  receive  a  salary  ol 
one  thousand  five  hundred  dollars  per  annum,  which  shall 
be  paid  out  of  the  general  fund  of  such  city,  or  city  and 
county. 

Sec.  3.  This  act  shall  not  repeal  any  act  heretofore 
made  and  now  in  force  for  the  appointment  of  interpreters, 
except  so  much  of  any  act  which  may  conflict  with  this 
act  in  the  appointment  of  Italian  interpreters. 

Sec.  4.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage.  [Approved  March  12,  1885;  Stats. 
1885,  108;    amended  1895,  p.  37.] 

Superseded  as  to  San  Francisco  by  chapter  I  of  article  V 
of  the  charter  of  that  city. 


776  APPENDIX 

JUSTICES'  CLERK. 

An  act  relating  to  the  justices'  courts  in  cities  and  counties 
of  more  than  two  hundred  thousand  population,  and 
providing  for  tlie  appointment  of  a  justices'  clerk  and 
his  assistants,  prescribing  thjir  duties  and  fixing  their 
compensation. 

[Approved  March  25,  1903;  Stats.  1903,  ch.  3t)0.  In  effect 
immediately.] 

f 

The  people  of  the  state  of  California,  represented  in  senate 
and  assembly,  do  enact  as  follows: 

Section  1.  The  supervisors  in  every  city  and  county  ot 
more  than  two  hundred  thousand  population  shall  appoint 
a  justices'  clerk  upon  the  written  nomination  and  recom- 
mendation of  the  justices  of  the  peace  of  said  city  and 
county  or  a  majority  of  them,  who  shall  hold  ofiice  for  tour 
years  and  until  his  successor  is  in  like  manner  appointed 
and  qualified. 

Sec.  2.  Said  justices'  clerk  shall  take  the  constitutional 
oath  of  ofiice,  and  give  bond  in  the  sum  ot  ten  thousand 
dollars  for  the  faithful  discharge  of  the  duties  of  his  office, 
and  in  the  same  manner  as  is  or  may  be  required  of  other 
officers  of  such  city  and  county.  A  new  and  additional  bond 
may  be  required  by  the  supervisors  of  such  city  and  county, 
whenever  they  may  deem  it  necessary. 

Sec.  3.  The  justices*  clerk  shall  have  authority  to  ap- 
point one  cashier,  one  chief  deputy  clerk,  two  deputy  clerks 
and  one  messenger,  for  whose  acts  he  shall  be  responsible 
on  his  official  bond.  The  said  appointees  to  hold  office  dur- 
ing the  pleasure  of  said  justices'  clerk. 

Sec.  4.  Said  chief  deputy  clerk  and  said  deputy  clerks 
shall  have  authority  to  administer  oaths,  and  take  and 
certify  affidavits  in  any  action,  suit  or  proceeding  in  the 
justices'  courts  in  such  city  and  county  and  generally  to 
perform  all  acts  which  the  justices'  clerk  himself  might 
perform. 

Sec.  5.  Said  justices'  clerk  and  his  appointees  shall 
receive  for  their  official  services  the  following  salaries  and 
no  other  or  further  compensation,  payable  out  of  the 
treasury  of  such  city  and  county,  after  being  allowed  and 
audited  as  other  similar    demands  are  required  by  law  to 


JUSTICES'    CLERK— JUSTICES    OF    THE    PEACE.  777 

be  allowed  and  audited:  The  said  justices'  clerk  the  sum 
of  three  thousand  dollars  per  annum;  the  cashier  and  the 
chief  deputy  clerk  each  the  sum  of  eighteen  hundred  dol- 
lars per  annum;  the  deputy  clerks  fifteen  hundred  dollars 
per  annum  each;  and  the  messenger  twelve  hundred  doN 
lars  per  annum. 

Sec.  6.  The  said  justices,  justices'  clerk  and  his  said 
appointees  shall  be  in  attendance  at  their  respective  offices 
for  the  dispatch  of  oflBicial  business,  daily,  except  Sundays 
and  holidays,  from  the  hour  of  nine  o'clock  A.  M.  until 
five  o'clock  P.  M. 

Sec.  7.  In  all  actions,  suits,  and  proceedings  commenced 
in  the  justices'  court  in  such  city  and  county,  or  before  any 
of  the  justices  of  the  peace  thereof,  the  original  process 
shall  be  returnable,  and  the  parties  summoned  required  to 
appear  before  one  of  the  justices  of  the  peace,  to  be  desig- 
nated by  the  justices'  clerk,  upon  issuing  such  process. 

Sec.  8.  All  legal  process  of  every  kind  in  actions,  suits 
or  proceedings  in  said  justices'  court  shall  be  issued  by 
the  said  justices'  clerk. 

Sec.  9.  All  other  acts  so  far  as  they  conflict  with  this 
act  are  hereby  repealed. 

Sec.  10.    This  act  shall  take  effect  immediately. 


JUSTICES  OF  THE  PEACE. 

An  act  fixing  jurisdiction  and  providing  compensation  for 
justices  of  the  peace  in  cities  and  towns. 

S  L    Powers  of  justice  of  tli«  pea«e. 
I  2.    Compensation. 

Powers  of  justices  of  the  peace. 

Section  1.  Justices  of  the  peace  in  any  township  com- 
posed in  whole  or  in  part  of  an  incorporated  city  or  town, 
and  justices  of  the  peace  in  any  city  or  town,  in  addition 
to  the  jurisdiction  and  powers  now  conferred  upon  them, 
are  authorized  and  empowered  to  exercise  all  powers, 
duties,  and  jurisdiction,  civil  and  criminal,  of  police  judges, 
judges  of  police  courts,  recorders'  courts,  or  mayors'  courts 
within  such  cities. 


778  APPENDIX. 

Compensation. 

Sec.  2.  The  compensation  of  the  justice  of  the  peace  of 
any  city  or  town,  who  is  paid  by  salary,  sliall  be  by  war- 
rants for  equal  monthly  payments,  drawn  each  month  upon 
the  salary  fund  of  such  city  or  town  if  there  be  one;  or  If 
no  salary  fund  be  provided,  then  upon  the  general  fund  of 
such  city  or  town,  such  warrants  to  be  audited  and  paid  as 
are  salaries  of  other  city  officials. 

Sec.  3.  This  act  shall  take  effect  immediately.  [Ap- 
proved  March  9,   1883;    Stats.  1883,  63.] 

Superseded  by  Code  of  Civil  Procedure,  section  103,  ante, 
as  amended  in  1901  and  1903. 

An  act  concerning  the  justices'  courts  of  the  city  and 
county  of  San  Francisco,  and  the  service  of  summons 
issued  therefrom. 

Summons. 

Section  1.  The  summons  issued  from  the  justices'  courts 
may  be  served  and  returned  as  provided  in  title  five,  part 
two,  of  the  Code  of  Civil  Procedure. 

Sec.  2.     This  act  shall  take  effect  from  and  after  its  pas- 
sage.    [Approved  April  3,  1876;  1875-6,  855.] 
Superseded  by  Code  of  Civil  Procedure,  section  849. 

An  act  to  create  a  court  in  and  for  the  town  of  Berkeley, 
state  of  California.  [Approved  March  27,  1895;  Stats. 
1895,  p.  205.  Declared  unconstitutional  by  Miner  v. 
Justices'  Court,  121  Cal.  264.] 


LIBEL. 
An  act  concerning  actions  for  libel  and  slander. 

§  1.  Undertaking. 

§  I.  Sureties. 

§  3.  Exception   to  sureties. 

§  4.  Justification. 

§  5.  Approval — New  mortgug*. 

§  6.  Failure   to   file   bond. 

§  T.  Costs. 

Section  1.  In  an  action  for  libel  or  slander  the  clerk 
shall,  before  issuing  the  summons  therein,  require  a  writ- 
ten undertaking  on  the  part  of  the  plaintiff  in  the  sum  ot 
five  hundred  (500)  dollars,  with  at  least  two  competent  and 


sufficient  sureties,  specifying  ttieir  occupations  and  resi- 
dences, to  the  effect  that  if  the  action  be  dismissed  or  the 
defendant  recover  judgment,  that  they  will  pay  such  costs 
and  charges  as  may  be  awarded  against  the  plaintiff  by 
judgment,  or  in  the  progress  of  the  action,  or  on  an  appeal, 
not  exceeding  the  sum  specified  in  the  undertaking.-  An 
action  brought  without  filing  the  undertaking  required 
shall  be  dismissed. 

Sec.  2.  Ea^h  of  the  sureties  on  the  undertaking  men- 
tioned in  the  first  section  shall  annex  to  the  same  an  affi- 
davit that  he  is  a  resident  and  householder  or  freeholder 
within  the  county,  and  is  worth  double  the  amount  speci- 
fied in  the  undertaking,  over  and  above  all  his  just  debts 
and  liabilities,  exclusive  of  property  exempt  from  execu- 
tion. 

Sec.  3.  Within  ten  days  after  the  service  of  the  sum- 
mons the  defendants,  or  either  of  them,  may  give  to  the 
plaintiff  or  his  attorney  notice  that  they  or  he  except  to 
the  sureties  and  require  their  justification  before  a  judge 
of  the  court  at  a  specified  time  and  place,  the  time  to  be 
not  less  than  five  nor  more  than  ten  days  thereafter,  ex- 
cept by  consent  of  parties.  The  qualifications  of  the  sure- 
ties shall  be  as  required  in  their  affidavits.  [Amendment 
approved  April  16,  1880;  Stats.  1880,  p.  81.] 

Sec.  4.  For  the  purpose  of  justification,  each  of  the 
sureties  shall  attend  before  the  judge  at  the  time  and 
place  mentioned  in  the  notice,  and  may  be  examined  on 
o&.th  touching  his  sufiiciency  in  such  manner  as  the  judge 
in  his  discretion  shall  think  proper.  The  examination  shall 
be  reduced  to  writing  if  either  party  desires  it. 

Sec.  5.  If  the  judge  find  the  undertaking  sufficient,  he 
shall  annex  the  examination  to  the  undertaking,  and  in- 
dorse his  approval  thereon.  If  the  sureties  fail  to  appear, 
or  the  judge  finds  the  sureties  or  either  of  them  insuffi- 
cient, he  shall  order  a  new  undertaking  to  be  given.  The 
judge  may  also  at  any  time  order  a  new  or  additional 
undertaking  upon  proof  that  the  sureties  have  become 
insufficient.  In  case  a  new  or  additional  undertaking  is 
ordered,  all  proceedings  in  the  case  shall  be  stayed  until 
such  undertaking  is  executed  and  filed,  with  the  approval 
of  the  judge. 


T80  APPESJDIX. 

Sec.  6.  If  the  undertaking  as  required  be  not  filed  in 
five  days  after  the  order  therefor,  the  judge  or  court  shall 
order  the  action  to  be  dismissed. 

Sec.  7.  In  case  plaintiff  recovers  judgment,  he  shall  be 
allowed  as  costs  one  hundred  (100)  dollars,  to  cover  coun- 
sel fees,  in  addition  to  the  other  costs.  In  case  the  action 
is  dismissed,  or  the  defendant  recover  judgment,  he  sball 
be  allowed  one  hundred  (100)  dollars,  to  cover  counsel 
fees,  in  addition  to  the  other  costs,  and  judgment  therefor 
shall  be  entered  accordingly.  [Approved  March  23,  1872; 
Stats.  1871-2,  p.  533;   amended  1880,  p.  81.] 


MORTGAGES. 

An  act  to  abolish  attorney's    fees  and   other  charges  in 
foreclosure  suits. 

Attorney's  fee  on  foreclosure  to  be  fixed  by  court. 

Section  1.  In  all  cases  of  foreclosure  of  mortgage  the 
attorney's  fee  shall  be  fixed  by  the  court  in  which  the 
proceedings  of  foreclosure  are  had,  any  stipulation  in  said 
mortgage  to  the  contrary  notwithstanding. 

See.  2.  All  acts  and  parts  of  acts,  so  far  as  they  con- 
flict with  the  provisions  of  this  act,  are  hereby  repealed, 
and  this  act  shall  take  effect  and  be  in  force  from  and 
after  its  passage.  [Approved  March  27,  1874;  Stats.  1873-4. 
707.] 


PROCESS. 

An  act  concerning  the  execution  of  final  process  in  cer- 
tain cases. 

Service  of  final  process  in  new  counties. 

Section  1.  In  all  cases  where  new  counties  have  been 
or  may  hereafter  be  erected,  and  executions,  orders  of 
sale  upon  foreclosures  of  mortgages,  or  other  process 
affecting  specific  real  estate,  have  been  or  may  hereafter 
be  adjudged  by  the  final  judgment  or  decree  of  a  court  or 
competent  jurisdiction  to  be  executed  by  the  sheriff  of  the 
county  in  which  such  real  estate  was  originally  situated, 
such  process  may  be  executed    by  the  sheriff  of  the  new 


PROCESS— PUBLIC    AX)MINISTRATOR.  781 

county  in  which  such  real  estate  is  found  to  be  situated, 
with  the  like  effect  as  if  he  were  the  sheriff  of  the  county 
designated  in  the  judgment,  decree,  or  order  of  sale,  to 
execute  the  same. 

Sec.  2.  This  act  shall  take  effect  and  be  in  force  from 
and  after  its  passage.  [Approved  March  16,  1874;  Stats. 
1873-4,  365.J 

An  act  to  declare  valid  writs,  process,  and  certificates 
issued  by  the  superior  courts  of  this  state,  or  the  clerks 
thereof,  before  such  courts  shall  have  been  legallv 
provided  with  seals. 

Writs,  process,  etc.,  declared  valid. 

Section  1.  No  writ,  process,  or  certificate  issued  by  any 
superior  court,  or  the  clerk  thereof,  before  such  court  shall 
have  been  legally  provided  with  a  seal,  shall  be  invalid,  if 
in  other  respects  valid,  by  reason  of  the  absence  of  a 
lawful  seal;  but  every  such  writ,  process,  or  certificate, 
whether  under  the  seal  of  one  of  the  courts  abolished  on 
the  first  day  of  January,  eighteen  hundred  and  eighty  or 
under  the  private  seal  of  the  clerk,  or  under  any  other 
seal,  or  issued  without  a  seal,  shall  have  the  same  validity 
as  if  it  had  been  authenticated  by  a  legally  adopted  seal 
of  the  court  out  of  which  or  by  whose  clerk  it  was  issued. 

Sec.  2.  This  act  shall  take  effect  immediately.  [Ap- 
proved March  31,  1880;  1880,  19  (Ban.  ed.,  62).] 


PUBLIC  ADMINISTRATOR. 

The  act  of  March  30,  1872,  Stats.  1871-2,  provided  that 
if  a  public  administrator  of  any  county  failed  to  qualify 
or  to  perform  his  duties,  the  coroner  should  be  ex  ofl^cio 
public  administrator,  and  in  case  of  failure  to  qualify  or 
of  neglect  on  his  part,  the  supervisors  should  appoint  a 
suitable  person  to  act.    See,  ante,  sec.  1726,  note. 


APPENDIX. 


RECORDS. 


An  act  to  transfer  the  records,  papers,  and  business  of 
the  courts  existing  on  the  thirty-fiz'st  day  of  December, 
eig-hteen  hundred  and  seventy-nine,  in  this  state,  to  the 
courts  now  existing  therein. 

/' 

§  1.     Supreme  court,   successor  of  court  of  same  name. 

§  2.     Superior   courts,    successor  of   what   courts. 

§  3.    Police  court  of  San  Francisco,    transfer  of  cases  to. 

Supreme  court,  successor  of  court  of  same  name. 

Section  1.  The  supreme  court  shall,  for  all  purposes, 
be  considered  the  successor  of  the  court  of  the  same  name 
which  was  abolished  on  the  first  day  of  January,  eighteen 
hundred  and  eighty,  and  to  have  succeeded  to  all  its  un- 
finished business.  It  shall  have  jurisdiction  of,  and  shall 
hear  and  determine,  or  cthei-wise  dispose  of,  all  causes, 
proceedings,  appeals,  motions,  and  matters  pending  on 
said  day  in  the  court  superseded  by  it;  and  also,  of  all 
appeals  taken  to  such  court  before  or  after  such  day,  from 
judgments  or  orders  of  any  of  the  inferior  courts  abolished 
by  the  constitution.  From  and  after  the  first  day  of  Janu- 
ary, eighteen  hiindred  and  eighty,  the  supreme  court  shall 
have  the  custody  of  all  records,  books,  and  papers  of  the 
former  supreme  court,  and  the  same  jurisdiction  over  its 
judgments,  orders,  and  proceedings  as  if  they  had  in  the 
first  instance  been  rendered,  made,  or  commenced  in  the 
present  court.  All  laws  relating  to  the  former  court  shall, 
as  far  as  applicable,  be  considered  as  applying  to  the  pres- 
ent court.  All  rules  of  the  former  court  which  were  in 
force  on  the  first  day  of  January,  eighteen  hundred  and 
eix^hty.  and  not  inconsistent  with  the  constitution,  shall 
co'ntinue  in  force  as  rules  of  the  present  court  until  altered, 
abolished,  or  superseded  by  the  order  of  the  court. 

Superior  courts,  successor  of  what  courts. 

Sec.  2.  The  superior  court  of  each  county  in  this  state 
shall  for  all  purposes,  be  considered  the  successor  of  the 
district,  county,  and  probate  courts  thereof,  and,  In  the 
city  and  county  of  San  Francisco,  of  the  municipal  criminal 
court  and  municipal  court  of  appeals,  and  shall  be  deemed 
to  have  succeeded  to  all  the  unfinished  business  of  said 
courts.     The    superior    courts    shall    hear,    determine,    or 


otherwise  dispose  of,  all  causes  and  proceedings  which 
were  pending  on  the  first  day  of  January,  eighteen  hun- 
dred and  eighty,  in  the  said  courts  superseded  by  them, 
and  every  motion  or  proceeding  then  pendin-g  or  thereafter 
made  or  taken  in  such  causes  and  proceedings,  and  of 
which  said  courts  would  have  had  juris'diction  had  they  not 
been  abolished;  and  also,  all  appeals  taken  or  perfected, 
before  or  after  said  day,  from  all  orders  or  judgments  of 
justices'  and  police  courts  which  by  law  are  declared  to  be 
appealable.  From  and  after  the  first  day  of  January, 
eighteen  hundred  and  eighty,  the  superior  courts  shall 
have  the  custody  of  all  the  records,  books,  and  papers  of 
the  said  courts  superseded  by  them,  and  shall  have  juris- 
diction thereof,  and  of  the  judgments,  orders  and  process 
of  said  courts;  and  shall  enforce  the  same  and  issue  pro- 
cess thereon  in  like  manner,  and  with  the  same  effect,  as 
if  they  had  in  the  first  instance  been  filed,  commenced, 
rendered,  made,  or  issued  in  or  by  the  superior  court.  The 
superior  court  of  the  city  and  county  of  San  Francisco 
shall  have  jurisdiction  of,  and  shall  try  and  dispose  of, 
all  indictments  for  misdemeanor  pending  in  the  city  crim- 
inal court  of  said  city  and  county  on  the  first  day  of  Janu- 
ary, eighteen  hundred  and  eighty;  and  such  indictments 
and  all  papers  and  records  relating  thereto,  shall  be  trans- 
ferred to  the  said  superior  court  and  become  records  there- 
of. Any  application,  motion,  or  proceeding,  set  by  the  dis- 
trict, county,  or  probate  court  of  any  county,  or  by  the 
judge  thereof,  to  be  heard  by  such  court  or  judge  after  the 
first  day  of  January,  eighteen  hundred  and  eighty,  may  be 
heard  in  the  superior  court  of  such  county,  upon  the  same 
notice  that  was  required  to  authorize  the  hearing  thereof 
in  such  district,  county,  or  probate  court,  or  by  the  judge 
thereof.  Any  process  issued  out  of  any  district,  county,  or 
probate  court  of  this  state  before  the  first  day  of  January, 
eighteen  hundred  and  eighty,  may  be  served,  or  the  service 
thereof  completed,  after  said  day,  in  the  same  manner  and 
with  like  effect,  as  if  such  courts  had  not  been  abolished; 
provided,  that  such  process  shall  be  returned  to  the  supe- 
rior court  of  the  county  in  which  it  was  issued,  and  any 
appearance  or  answer  required  by  such  process  shaJl  be 
made  or  filed  in  such  court. 


784  APPENDIX. 

Police  court  of  San  Francisco,  transfer  of  cases  to. 

Sec.  8.  All  prosecutions  which  were  transferred  or  cer- 
tified for  trial  to  the  city  criminal  court  of  the  city  and 
county  of  San  Francisco,  by  the  police  court  thereof,  and 
were  pending  or  undetermined  on  the  first  day  of  January, 
eighteen  hundred  and  eighty,  shall  be  tried  and  disposed 
of  in  the  said  police  court;  and  all  the  papers,  pleadings, 
and  records  relating  to  such  prosecutions  shall  be  trans- 
ferred to,  and  deposited  with,  said  police  court,  and  be- 
come records  and  papers  thereof. 

Sec.  4.  This  act  shall  take  effect  immediately.  [Ap- 
proved February  4,  1880;  1880,  2  (Ban.  ed.  2).] 


STATE. 


An  act  to  authorize  suits  against  the  state,  and  regulat- 
ing the  procedure  therein.* 

§  1.  Right   of   action. 

§  2.  Limitation   of  actions. 

§  3.  Undertaking. 

§  4.  Service   of  summons. 

§  5.  Judgment. 

§  6.  Duty  of  governor. 

§  7.  Duty   of   controller. 

Section  1.  All  persons  who  have,  or  shall  hereafter 
have,  claims  on  contract  or  for  negligence  against  the 
state  not  allowed  by  the  state  board  of  examiners,  are 
hereby  authorized,  on  the  terms  and  conditions  herein 
contained,  to  bring  suit  thereon  against  the  state  in  any 
of  the  courts  of  this  state  of  competent  jurisdiction,  and 
prosecute  the  same  to  final  judgment.  The  rules  of  prac- 
tice in  civil  cases  shall  apply  to  such  suits,  except  as  here- 
in otherwise  provided. 

Sec.  2.  No  such  suit  shall  be  maintained  on  any  claim 
now  existing,  unless  the  same  be  brought  within  two  years 
after  this  act  takes  effect;  nor  shall  any  such  suit  be 
maintained  on  any  cause  of  action  hereafter  arising,  un- 
less the  same  shall  be  commenced  within  two  years  after 
such  cause  of  action  shall  have  accrued;  provided,  that  the 
period  of  limitation  provided  for  in  section  two  of  this 
act    shall   not    apply   to  or    affect  the  rights,  interest,  or 


•See  Mollneux  v.    State,   109  Cal.    378. 


-STATS.  785 

claims  of  any  minor  or  insane  person,  or  a  person  impris- 
oned on  a  criminal  charge,  or  in  execution  under  a  sen- 
tence of  a  criminal  court  for  a  period  of  not  less  than  for 
life,  or  a  married  woman  and  her  husband  be  a  necessary- 
party  with  her  in  commencing  such  action,  or  an  incom- 
petent person,  but  such  action  may  be  commenced  within 
the  period  above  provided  for  after  such  disability  shall 
cease. 

Sec.  3.  At  the  time  of  filing  the  complaint  in  any  such 
suit,  the  plaintiff  shall  file  therewith  an  undertaking,  In 
such  sum,  not  less  than  five  hundred  dollars,  as  a  judge 
of  the  court  shall  fix,  with  two  suflScient  sureties,  to  be 
appi-oved  by  a  judge  of  the  court,  and  conditioned  that, 
in  case  the  plaintiff  fails  to  recover  judgment,  he  will  pay 
all  costs  incurred  by  the  state  in  such  suit,  including  a 
reasonable  counsel  fee,  to  be  fixed  by  the  court. 

Sec.  4.  Service  of  summons  in  such  suits  shall  be  made 
on  the  governor  and  attorney-general.  It  shall  be  the  duty 
of  the  attorney-general  to  defend  all  such  suits;  and  upon 
his  written  demand,  made  at  or  before  the  time  of  answer- 
ing, the  place  of  trial  of  any  such  suit  must  be  changed 
to  the  county  of  Sacramento. 

Sec.  5.  In  case  judgment  be  rendered  for  the  plaintiff 
in  any  such  suit,  It  shall  be  for  the  amount  actually  due 
from  the  state  to  the  plaintiff,  with  legal  interest  thereon, 
from  the  time  the  obligation  accrued,  and  without  costs. 

Sec.  6.  It  shall  be  the  duty  of  the  governor  to  report 
to  the  legislature,  at  each  session,  all  judgments  rendered 
against  the  state,  and  not  theretofore  reported. 

Sec.  7.  It  shall  be  the  duty  of  the  controller  to  draw 
his  warrant  for  the  payment  of  any  such  judgment,  with- 
out any  presentation  to  or  approval  of  such  claim  by  the 
state  board  of  examiners,  whenever  a  sufficient  appropria- 
tion for  such  payment  shall  have  been  made  by  the  legis- 
lature; and  all  claims  upon  such  judgments  are  hereby 
expressly  exempted  from  the  operation  of  section  six  hun- 
dred and  seventy-two  of  the  Political   Code. 

Sec.   8.    This  act     shall   take  effect  Immediately.     [Ap- 
proved February  28,  1893;   Stats.  1893,  p.  57.] 
See  Molineux  v.  State,  109  Cal.  378. 

Cod*  civil  Proc— 50. 


786  APPENDIX. 

An  act  to  authorize  Robert  C.  Ball  to  sue  the  state  of 
California.  [Approved  March  24,  1891;  Stats.  1891,  p. 
194.] 

The  nature  of  the  act  suflaciently  appeat-s  from  the  title. 

An  act  to  enable  the  Coultervllle  and  Yosemite  Turnpike 
Company,  a  corporation,  to  sue  the  s(:^.te  of  California 
for  the  loss  and  damage  suffered  and  sustained  by  said 
corporation  by  the  construction  of  a  road  by  the  Yo- 
semite Turnpilce  Road  Company,  under  and  by  virtue 
of  an  act  of  the  legislature  of  the  state  of  California, 
entitled,  "An  act  granting  the  right  of  way  to  the 
Yosemite  Turnpike  Road  Company  over  the  Yosemite 
Grant,"  approved  February  17,  1874,  and  for  the  relief 
of  said  Coultervllle  and  Yosemite  Turnpike  Company. 
[Approved  March  31,  1891;    Stats.  1891,   p.  275.] 

The  nature  of  the  act  sufllciently  appears  from  its  title. 

An  act  to  authorize  suits  against  the  state  concerning  cer- 
tain real  property  and  regulating  the  procedure  therein. 
[Approved  March  8,  1901;  Stats.  1901,  p.  111.] 

This  allowed  the  claimants  of  real  property  applied  for 
and  sold  to  one  Estell  as  part  of  the  500,000  acre  grant  to 
sue  the  state  to  quiet  title. 

An  act  authorizing  suits  against  the  state  on  claims  or 
demands  arising  under  an  act  of  the  legislature,  en- 
titled, "An  act  fixing  a  bounty  on  coyote  scalps,"  ap- 
proved March  31,  1891,  and  regulating  the  procedure 
thereon.  [Approved  March  23,  1901;  Stats.  1901,  p. 
646.] 

The  purpose  of  the  act  sufficiently  appears  from  its  title. 


STATUTE  OF  LIMITATIONS. 
An  act  respecting  the  limitations  of  actions. 
Bankers'   certificates  of  deposit. 

Section  1.  Where  bankers'  certificates  of  deposit  have 
heretofore  been  given  to  any  party  since  deceased,  and 
not  found  until  after  administration  of  his  or  her  estate, 
an  action  may  be  maintained  thereon  by  the  heirs  or  legal 


STATUTE    OF   LIMITATIONS.  787 

representatives  at  any  time  within  six  months  after  such 
finding. 

Sec.  2.  This  act  shall  take  c  "Zect  from  and  after  its  pas- 
sage.    [Approved   March   11,   1872;    1871-2,   319.] 

Superseded  by  section  348  of  the  Code  of  Civil  Procedure. 

An  act  supplementary  to  an  act  entitled  an  act  defining 
the  time  for  commencing  civil  actions,  passed  April 
twenty-second,    eighteen   hundred   and   fifty. 

No  limitation  to  action  for  money  deposited  with  bankers. 

Section  1.  There  shall  be  no  limitation  upon  the  right 
to  maintain  an  action  for  the  recovery  of  money  or  other 
property  deposited  with  any  bank,  banker,  trust  company, 
or  savings  and  loan  society. 

Sec.  2.  All  acts  and  parts  of  acts  in  conflict  herewith, 
so  far  as  the  same  are  in  conflict,  are  hereby  repealed. 

Sec.  3.  This  act  shall  take  effect  from  and  after  its 
passage.     [Approved  March  16,  1872;   Stats.  1871-2,  401.] 

Codified  and  superseded  by  section  348  of  the  Code  of 
Civil  Procedure. 


SUPREME  COURT  COMMISSION. 
See  ante,  Courts. 


INDEX. 


ABANDONMENT,  action,  of,  nonsuit,  §  581. 
Contractor,  by,  mechanic's  lien,  §  1200. 

ABATEMENT,  action  not  abated  by  death,  disability,  or 
transfer,  when,  §  385. 
Nuisance,  of,  §  731. 
Pleas  in,  §  430. 

ABBREVIATIONS,  use  of,  in  judicial    proceedings,    §  186. 

ABSENCE,  evidence,  of,  motion  to  postpone  trial,  §  595. 

Executor  from  state,  §  1354. 

Judge,  of,  proceedings  in  case  of,  §  139. 

Justice  of  peace,  of,  reassignment  and  transfer  of  ac- 
tion, §  90. 

Order  in  absence  of  party  deemed  excepted  to,  §  647. 

Presiding  justice  of  peace,  substitute,  §  85. 

Publication  of  summons  in  case  of,  §§  412,  413. 

State,  from,  running  of  statute,  §  351. 

Superior  judge,  of,  authority  of  court  commissioner, 
§  259. 

Superior  judge,  of  holding  court  by  another,  §  160. 

Trial  in  absence  of  party,  §  594. 

Waiver  of  jury  by,  §  631. 

Witness,  of,  deposition  may  be  taken,  §  2020. 

Witness,  of,  postponement  of  trial  for,  §  595. 

ABSENTEE,   agent  for,  in  distribution,   §§   1691-1695. 
Publication  of  summons,  §§  412,  413. 

ABSTRACT  OF  JUDGMENT  in  justice's  court,  §§  897,  898. 

ABSTRACT  OF  TITLE  in  partition,  §§  799,  800, 
In  partition,  cost  of  allowed  when,  §  799. 

ACCIDENT,  new  trial  on  ground  of,  §  657. 

ACCOMPLICE,  testimony  of,  to  be  viewed  with  suspicion, 
§  2061. 

ACCOUNT,  delivery  of  copy  to  adverse  party,  §  454. 
General  or  defective,  further  account,   §  454. 
How  proved,   §  1855. 
Interlocutory   judgment,  ordering,   time  to  appeal,  §   939. 

.      (789) 


■m  ACCOUNT— ACTION. 

Judge  may  receive  at  chambers,  §  166. 

Limitation  of  action  on,   §  344. 

Persons  intrusted  with  decedent's  estate  may  be  cited 

to,  §  1461. 
Pleading,  how  to  state  account  in,.  §  454. 
Pleading  in  justice's  court,   §   886. 
Reference  of,  §  639. 

Reference  of,  on  judgment  by  default,  §  585. 
Sale  of  decedent's  property,   of,   return  of,   §   1575. 
Special  administrator's,  §  1417. 
Summary  of,  when  admissible,  §  1855. 
Surviving   partner,   accounting   by,   §   1585. 
Trustee's,   settling   after  distribution,   §   1699. 

ACCOUNTING,  rents  and  profits  after  execution,  for,  §  707. 
Executor,  of,  §  1622. 

ACCUSATION,  attorney,    accusation    against,    §§    290-297. 
See  Attorneys. 

ACKNOWLEDGMENT,  certificate  of,  as  evidence,  §  1948. 
Certificate   of   redemption,   acknowledgment   of,    §   703. 
Court  commissioner's  power  to  take,   §   259. 
Debt,   acknowledgment   so   as   to   remove   bar   of   stat- 
ute,  §  360. 
Justice  of  peace  may  take,  §  179. 
Justice  of  supreme  court  may  take,  §  179. 
Police  judge  may  take,  §  179. 
Satisfaction  of  judgment,  of,  §  675. 
Superior  judge  may  take,  §  179. 
What  writings  may  be  acknowledged,  §  1948. 

ACTION,  abatement   not  worked   by  death,   disability,   or 

transfer,  when,   §  385. 
Alienation  of  realty,  not  to  prejudice,  §  747. 
Appeal,  action  deemed  pending,  during,  §   104b. 
Civil,  arises  out  of  obligations  or  injuries,  §  25. 
Civil,  definition  of,  §§  22,  30. 
Commenced  by  filing  complaint,   §   405. 
Consolidation  of,  §  1048. 
Criminal,   Penal   Code   provides   for   prosecution   of,    § 

31. 
Deposit  in  court:     See  Deposit  in  Court. 
Determine  adverse  claims,  to,  §  1050. 
Dismissal   of:     See   Dismissal. 
Executor    or    administrator    may    sue    without   joining 

beneficiaries,  §  369. 
Extension  of  time,  in  general,  §  1054. 


ACTION— ADJOURNMENT.  Wl 

Form  of,  one  only,  §  301. 

Guardians,  power  respecting,   §  1769. 

Interpleader,  when  and  how  maintained,  §  386. 

Intervention,  how  and  when  effected,  §  387. 

Is  civil  or  criminal,  §  24. 

Joined,  what  actions  may  be,  §  427. 

Justices'  courts,  in:    See  Justices'  Court. 

Limitation  of,   §§  312-362.     See   Limitation  of  Actions. 

Lis  pendens,  §  409. 

Local,  what  are,  §  392. 

Merger  of  civil  and  criminal,  §  32. 

Misjoinder  of,  demurrer  for,  §§  430,  444. 

Notice  of  pendency  of  action  affecting  real  property, 
§    409. 

Paper  with  defective  title,  when  valid,  §  1046. 

Particular  actions:     See  Particular  Title. 

Parties,  other,  when  court  may  order  in,  §  389. 

Parties  to:     See  Parties. 

Pending,  how  affected  by  code,  §  8. 

Pending,  when  deemed  to  be,   §  1049. 

Place  of,  §§  392-400.     See  Place  of  Trial. 

Real  party  in  interest  to  prosecute,  §  367. 

Realty,  to  recover  injuries  to,  §  392. 

Realty,  to  recover,  where  brought,   §   392. 

Receiver  may  bring  and  defend,  §  568. 

Register  of  must  be  kept  by  clerk,  §  1052. 

Register  of,  what  to  be  entered  in,   §  1052. 

Remedies  divided  into  actions  and  special  proceed- 
ings, §  21. 

Ships,  against,   §§   813-827. 

Special  proceeding  included  under,  in  statute  of  limi- 
tation, §  363. 

State,  acts  authorizing  actions  against,  pp.   784-786. 

Submitting   controversy   without   action,    §§    1138-1140. 

Successive  actions,   §   1047. 

Surety  by,   §  1050. 

Survival  of,  statute  of  limitation,  §§  353,  355. 

Title  of,  §  426. 

Transfer  of,   §§  397-400.     See  Place  of  Trial. 

Transitory,   §  395. 

Trustee   may   sue  without  joining  beneficiaries,   §   369. 

When  commenced,  §  350. 

ADJOURNMENT.     Amendment  In  justices'  court,  adjourn- 
ment on,  §  859. 
CJonstrued  as  recesses  and  not  to  prevent  court's  sit- 
ting, §  74. 


792  ADJOUKNMENT— ADVERSE    POSSESSION. 

Contempt  proceedings,  in,  §  1217. 

Continuance:     See   Continuance. 

Guardians  have  power  to  adjourn,  §  1284. 

Holidays,  on,  §  135. 

In  election  contest,  §  1121. 

In  justice's  court,  §§  873-877. 

Judge,  absence  of,  §  139. 

Judge,   failure   to   attend,   sheriff   or   clerk   to   adjourn 

until  what  time,  §  140. 
Trial  in  police  court,  §  931. 
While  jury  out,  §  617. 
While  jury  out,  sealed  verdict,  §  617. 

ADMINISTRATOR:   See   Executor   and   Administrator. 

ADMIRALTY:   See  Shipping. 

Judgment  of  court  of  admiralty    of    foreign    country, 
conclusiveness  of,   §    1914. 

ADMISSION.     Attorney,  admission  to  practice,  §§  275-280. 
By  failure  to  verify  answer,  §  446. 
Compromise,  offer  of,  is  not,  §  2078. 
Contract   set   out   in    answer,    when   deemed   admitted, 

§    448. 
Evidence,   admission  of,   denial   of  continuance,   §   595. 
Service  of  summons,  of,  §  415. 

Written    instruments    in    complaint    deemed    admitted, 
when,   §§  447-449. 

ADMONITION  of  jury,  on  separation,  §  611. 

ADULTERY,  confession  of,  divorce,  §  2079. 

ADVANCEMENT  to  heir,  §  1686.     See  Wills,  IV. 

ADVERSE  CLAIM,  personal  property,  to,  action  to  deter- 
mine,  §   1050. 
Quieting  title,   §§   738-751.     See  Quieting  Title. 
Real  property,  to,  action  to  determine,  §  738. 

ADVERSE  POSSESSION,  descent  cast,  right  of  possession 

not  affected  by,  §  327. 
Disabilities  excluded  from  time  to  commence  actions 

§  328. 
Entry,  §  320. 
Improvements  as  a  setoff,   §  741. 


ADVERSE    POSSESSION— AFFIDAVIT.  791 

Inclosure  and  boundaries,  §  325. 

Infant,   against,    §   328. 

Judgment,  under,  §§  322,  323. 

Landlord  and  tenant,  presumption  as  to  tenant's  pos- 
session, §  326. 

Landlord  and  tenant,  relation  of,  as  affecting,  §  326. 

Lunatic,  against,   §   328. 

Mesne  profits,  §  336. 

Mining   claim,    inclosure   of,    §    325. 

Occupation  deemed  under  legal  title  unless  adverse, 
§    321. 

Occupation  under  judgment,  when  adverse,  §§  322,  323. 

Occupation  under  written  instrument,  when  adverse, 
§§  322,  323. 

Possession,  when  presumed,  §  321. 

Possesssion  not  under  instrument,  extends  how  far, 
§    324. 

Possesion  of  part,  whether  possession  of  whole,  §§ 
322,  323. 

Prisoner,   against,    §   328. 

Public  land,  effect  on  certificate  of  purchase  or  loca- 
tion, §  1925. 

Redemption  of  mortgage,  §§  346,  347. 

Seisin,   §§   318,   319. 

State,  against,  §§  315,  317. 

Taxes,  payment  of,  necessary  to,  §  325. 

What  constitutes,  under  claim  of  title  not  written, 
§    325. 

Written  instrument  or  judgment,  under,  §§  322,  323. 

Written  instrument,  not  founded  on,  §§  324,  325. 

AFFIDAVIT:   See  Subject  in  Question. 
AflBrmations:   See    Affirmation. 
Amendment,  for  order  to  allow,   §  473. 
Appeal,  a  part  of  record  on,   §  661. 
Arrest,  for,  of  defendant,  §  481. 
Arrest,  for,  of  defendant  in  justice's  court,  §  862. 
Arrest,  on  motion  to  vacate,  or  reduce  bail,  §  503. 
Attachment,  for,   §   538. 
Attachment,  for  discharge  of,  §  557. 
Attachment,  for,  in  justice's  court,  §  866. 
Before  whom  may  be  taken,   §   2012. 


AFFIDAVIT. 

Before  whom  may  be  taken  in  another  state,  §  2013. 

Certificate  to  foreign,  §  2015. 

Change  of  judges,  for,  on  ground  of  bias,  etc.,  §  170. 

Changing  place  of  trial  in  justices'  courts,  for,  §  833. 

Claim  from  exemption  from  jury  duty,  of,  §  202. 

Continuance,  on  motion  for,  §  595. 

Copy    of,  as  evidence,  §  2011. 

Corporation,  affidavit,  how  made,  §  1348. 

Costs,  of,  §   1033. 

Decedent,  to  support  claims  against  estate  of,  §  1494. 

Defective  title  to,  validity,  §  1046. 

Defendant  for  trial  in  proper  county,  of,  §  396. 

Defined,  §  2003. 

Deputy  justices'  clerk,  authority  of,  to  take,  §  86. 

Election,  of  party  contesting,  §  1115. 

Evidence,  as,  §  2011. 

Facts  constituting  contempt,  of,  §  1211. 

Filed  where,  §  2011. 

Foreign  country,  who  may  take  in,  §  2014. 

Guardian's    account    and    inventory    to    be    sworn    to, 

§  1773. 
Identity,  affidavits  admissible  to  prove,   §  1379. 
Imprisoned  witness,  for  order  to  examine,  §  1996. 
Injunction,  for  vacating  or  modifying,  §  532. 
Judicial  officers  may  take,  §  179. 
Juror  may  make,  of  misconduct  of  jury,  §  G57. 
Justice  of  peace  may  take,  §  179. 
Mandamus,  for,  §  1086. 

New  trial,  motion  for  on  affidavit,  procedure,  §  C59. 
New  trial,  for,  §  658. 

Of  plaintiff  denying  execution  of  instrument,  §  448. 
Particular    proceedings,     affidavits     in:   See   Particular 

Title. 
Police  judge  may  take,  §  179. 

Postponement  of  trial,  for,  in  absence  of  witness,  §  595. 
Prejudice  of,  §  170. 
Prohibition,  for,   §   1103. 
Publication  of  summons,  for,  §  412. 
Publication  of  summons,  for,  as  part  of  judgment-roll, 

§  670. 
Publication,  to  prove,  §  2010. 
Redemptioner  from  execution,  of,  §  705. 
Referee,  on  objections  to  appointment  of,  §  642. 


AFFIDAVIT— AGENCY.  795 

Replevin,  in,  §§   510,  519,  520. 

Relief   from   default  judgment   in   justice's   court,   for, 

§   859. 
Review,  for,  §  1069. 
Service  of  summons,  of,  §  415. 
State  a  party,  when,   §   446. 

Summons   to  joint   debtor  after  judgment,   for,   §    991. 
Supreme  court  justice  may  take,  §  179. 
Superior  judge  may  take,   §  179. 

Sureties  of,  on  bond  to  stay  money  judgment,  §  942. 
Title,  want  of,  effect  of,  §  1046. 
Transfer  of  action  to    another    justice    of    peace,    on 

ground  of  interest,  etc.,  for,   §  90. 
Vacating  or  modifying  injunction,   for,   §   532. 
Value  of,  in  claim  and  delivery  does  not  bind  officer, 

when,  §  473. 
Verification  of  pleadings,  §  446. 
Will,  of  grounds  for  contest,  §  1314. 
Witness,  of,  on  his  arrest,  §  2069. 
What  provable  by,  §  2009. 
When  may  be  used,  §  2009. 
Who  may  take,   §§  86,   179,  259,  2012. 
Who  may  take  in  another  state,  §  2013. 
Wlio  may  take  in  foreign  country,  §  2014. 

AFFINITY,  appraisers,  whether  disqualified  by,  §  1444. 
Judge  or  justice,  as  disqualifying,  §  170. 
Juror,  as  disqualifying,  §  602, 
Meaning  of,  §  17. 
Receiver,  as  disqualifying,  §  566. 
Referee,    as    disqualifying,    §    641. 

AFFIRMATION,  form  of,  §  2097. 
Includes  oath,  §  17. 
In  place  of  oath,  §  2097. 

AFFRAYS.     Justice's  court  has  jurisdiction  over,  §  115. 

AGENCY,  absentee  in  distribution,  agent  for,  §§  1691-1695. 
Authority  of  agent  to  sell  realty,  to  be  written,  §  1973. 
Declarations  of  agent,   §  1870. 
Default   judgment,   examination   of  agent   of  plaintiff, 

§  585. 
Referee,  relation  of,  disqualifies,  §  641. 
Replevin  from  agent,  §   512. 
Replevin,  service  of  order  on  agent,  §  512. 


796  ■    AGREED     CASE— AMBIGUITY. 

AGREED  CASE,  appeal  lies  from  judgment  in,  §  1140. 
Costs  prior  to  trial,  not  allowed,  §  1139. 
How    submitted,    §    1138. 

Judgment  enforceable  as  other  judgments  are,  §  1140. 
Judgment  entered,  as  in  other  cases,  §  1139. 
Parties  may  submit,  §   1138. 
Proceedings  on,   §   1138. 
What  must  appear,  §  1138. 

ALAMEDA  COUNTY,  number  of  superior  judges,  §  66. 
Acts  providing  additional  superior  judges,   p.   765. 

ALIAS,  execution  from  justice's  court,   §   903. 
Summons  from  justice's  court,  §§  846,  847. 
Summons  will  issue,  when,  §  408. 
Writ  of  possession,  §  1212. 

ALIEN.    Admission  of  attorney  from  foreign  country,!  279. 
Limitation  of  actions  affecting,  §  354. 

ALIENATION,  effect  of  on  action,  §§  740,  747. 

ALLEGATIONS:    See  Answers;    Complaint. 

Affirmative,  by  whom  must  be  proved,  §  1869. 

Burden  of  proof  of,  §§  1869,  1981. 

Denials  of,  how  made,  §  437. 

If  not  controverted,   deemed   admitted,    §   462. 

In   particular   actions:   See   Particular   Title. 

In  pleadings  against  joint  debtors,  §  993. 

Material,  evidence  confined  to,  §  1868. 

Material,  what  are,  §  463. 

Material,  only  need  be  proved,   §  1867. 

Negative,  when  must  be  proved,  §  1869. 

Redundant,  sham   and  irrelevant,   striking  out,   §   453. 

To   be    liberally   construed,    §    452. 

Variance,  §§  469-471. 

When  deemed  admitted,  §  462. 

When  deemed  controverted,   §  462. 

ALLOWANCE  for  support  of  family  of  decedent,  §§  1464, 

1467. 
How   to  be  paid,   §   1467. 

ALTERATION   OF  WRITING,  party    producing    must    ac- 
count for,  §  1982. 
Of  will:  See  Wills,  VI. 

AMBASSADOR.     Affidavit,  may  take,  §  2014. 

AMBIGUITY,  parol  evidence  to  explain  in  writing,  §  1856. 


AMENDMENT— ANSWER.  W 

AMENDMENT,  answer  before,  effect  of,  §  472. 
Bill  of  exceptions,  to,  §  650. 
Complaint,  defendant  must  answer,   §   432. 
Complaint,   failure   to  answer,   default,   §   432. 
Complaint,  filing  and  serving  amendments,  §§  432,  472. 
Complaint  in   forcible   entry,   to   conform  to   proofs,   § 

1173. 
Complaint,  of,  in  forcible  entry  and  detainer,  §  1173. 
Conclusions  of  law,  of,  §  663. 
Demurrer,  after,  of  course,  §  472. 
Demurrer,  before,   §  472. 
Fictitious  name,  §  474. 
Justice's  court,  adjournment  and  costs,  on  amendment 

in,   §   859. 
Justice's   court,   amendment  in,   §   859. 
Mistake  in  any  respect,  correcting  by,  §  473. 
Of  course,   without  costs,   §   472. 

Order  allowing  or  refusing  deemed  excepted  to,  §  647. 
Pleading,    of,    time    for,    §    476. 
Pleading,  of,  when  variance,  §§  469,  470. 
Pleadings,  of,  to   bring  in  necessary  parties,   §   389.    • 
Pleadings,  of,  on  demurrer  in  justice's  court,  §  858. 
Pleadings,  to,  in  general,  §   473. 
Process,  of,  power  of  court,   §  128. 
Statement,  amendments  to,  §§  659,  661. 
Striking  out  name  of  party,  §  473. 
Supplemental  pleadings,  §  464. 
Terms  may  be  imposed,  §  473. 
To  pleadings  or  proceedings  generally,  §  473. 
Variance,  in  case  of,  §§  469,  470. 

AMICABLE  ACTIONS,  submission  of  controversy,  §§  1138- 
1140. 

ANCHORAGE,  vessels  liable  for,  §  813. 

ANOTHER  ACTION   PENDING,  ground    for    demurrer,    § 

430. 

ANCIENT  WRITINGS,  presumption  of  genuineness,  §  1963. 

ANIMALS,  liens  arising  from  acts  to  prevent  cruelty  to, 
how  enforced,  §  1208. 
Disposition  of  proceeds,  §  1208. 

ANSWER,  in  particular  actions:  See  Particular  Title. 
Abatement,  plea  in,   §  430. 

Absence  of,  what  relief  granted  plaintiff,  §  580. 
Account,  items  of,  §  454. 


798  ANSWER. 

Allegations:     See    Allegations. 

Amendment  of,   §   472. 

Amended  complaint,  failure  to,  default,  §  472. 

Amendeu  complaint,   to,   time  for,    §   472. 

Amended   pleading,   to,   §   472. 

Appearance,  answer  is,   §  1014. 

Complaint,   amended,   to,   §   432. 

Construction  of,   §   452. 

Contains  what,   §   437. 

Counterclaim,    §§    437-440. 

Counterclaims,  may  contain  several,   §  441. 

Cross-complaint,   §   442. 

Cross-complaint,    to,    §    442. 
.    Default  for  failure  of,  when  entered,  §  585. 

Defective  heading  to,  §  1046. 

Defense,   may  contain  several,    §   441. 

Defense  not  raised  by,  waived,  §§  434,  439. 

Defenses  must  be  stated  separately,   §  441. 

Demur  to  part,  and  reply  to  part,  §  441. 

Demurrer  and,  at  same  time,  §  431. 
■    Demurrer  overruled,  allowing  answer,  §  472. 

Demurrer,  effect  on,  §  472. 

Demurrer,    matters    not    appearing    on    face   of   com- 
plaint,  §   433. 

Demurrer,  overruling,  time  to  answer,   §   476. 

Demurrer  to,  §§  422,  443,  444. 

Demurrer  to,  effect  of  overruling,  §  472. 

Demurrer  to  part  and  reply  to  part,  §  441. 

Disclaimer,  §  739. 

Filed,  must  be,  §  465. 

General   denial   puts   in   issue,   what,   §   437. 

General  denial,  when   suflBcient,   §   437. 

Generally,   §  437. 

Genuineness  of  instruments,   how   controverted,   §   448. 

Genuineness   of   instruments,    when    admitted,    §    447. 

Genuineness     of     instruments,     when    not    admitted, 
§  449. 

Information  and  belief,  denial  on,  §  437. 

Irrelevant,  may  be  stricken  out,  §  453. 

Joint  debtor  brought  in  after  judgment,  of,  §  992. 

Justice's  court,  in,  §  852.     See  Justice's  Court. 

Lost,  how  supplied,  §  1045. 

Material     allegations    in    complaint,   not   controvertefl 
deemed  true,  §  462. 

Material  allegations,  what  are,  §  463. 

New   matter,   §   437. 

New  matter  In,  deemed  denied,  §  462. 


ANSWER— APPEALS.  ""' 

Objection  not  appearing  on  complaint,  may  be  taken 

by,    §   433. 
Objections  to  complaint  waived,  when,  §  434. 
Plea  in  abatement,  §  430. 
Pleading,  as  a,  §  422. 
Police  court,  in,  oral  or  written,  §  931. 
Police  court,  when  may  be  made,  §  931. 
Redundant  matter,  striking  out,  §  453. 
Served,  must  be,  §  465. 
Shall  contain  what,  §  437. 
Sham,  may  be  stricken  out,  §   453. 
Signature  to,  §  446. 

Specific  denial,  when  necessary,   §  437. 
Striking  out,  §  453. 
Supplemental,  when  allowed,  §  464. 
Time  for,  extending,   §§   473,   1054. 
Unverified   complaint,   general   denial,   §   437. 
Variance,   amendment,   §§  469,  470. 
Verification  of,   §   446. 
Verified  complaint,  specific  denial,  §  437. 
Verified  complaint,  failure  to  verify  answer,  §  446. 
Waiver  of  objections  not  taken  by,  §  434. 
Waiver  of  summons  by,  §  406. 

What  to  contain,   §  437.  .     *    ^,,     ,. 

Written    Instrument,     when    complaint   sets   tortn,    g9 

447-449. 
Written  instrument,  setting  out  in,  §§  448,  449. 
See  Pleadings. 

APPEALS.     Appellant,  definition  of,  §  938. 

Appellant,  who  is,  §   938. 

Courts  existing  before  January,  1880,  appeal  from,  p. 
761,  Stats. 

Forcible  entry,  provisions  relating  to  appeals  relate 
to,  §  1178. 

Judgment  reviewable   as   code   prescribes,   §   936. 

Jurisdiction  of  supreme  court,  §§  53,  963.  See  Su- 
preme Court. 

Order  reviewable  as  code  prescribes,   §   936. 

Parties,  how  designated,  §  938. 

Probate  orders  and  decrees,  provisions  relating  to  ap- 
peals apply,  §  1714. 

Probate  proceedings,  appeals  in:  See  Wills,  Xiu. 

Respondent,  definition  of,   §  938. 

Respondent,  who  is,  §   938. 


Who  may  appeal  and  in  what  cases  may  be  taken. 

Agreed,  case,  appeal   lies  from  judgment,   §  1140. 

Any  aggrieved  party  may  appeal,  §  938. 

Award,  decision  upon  motion  to  modify  appealable, 
§   1289. 

Award,  judgment  on  before  motion  to  correct  not  ap- 
pealable, §  1289. 

Corporation,  judgment    dissolving,  appeal  lies,  §   1233. 

Causes  in  which  may  be  taken,  §  963. 

Distribution,  appeal   from  proceedings  in,   §   1664. 

Election  contest,  appeal  from,   §  1126. 

Eminent  domain,  appeal  in,  §  1257. 

Heirship,  appeal  lies  from  judgment  in  proceedings  to 
determine,   §  1664. 

Judgment  in  cause  submitted  without  action,  appeal 
from,  §  1140. 

Judgments  from  which  may  be  taken,   §  963. 

May  be  taken  in  what  cases,  §  963. 

Mechanic's  lien,  appeal  in  cases  involving,   §   1199. 

New  trial,  appeal  from  orders  respecting,   §   963. 

New  trial,  order  for  made  by  court  without  applica- 
tion of  parties,  §  662. 

Orders  from  which  may  be  taken,  §  963. 

Receiver,  appeal  from  appointment  of,  §  963. 

Trustee's  account  after  distribution,  appeal  from, 
§   1701. 

Special  administrator,  none  from  appointment  of, 
§  1413. 

Who  may  appeal,  §  938. 

Within  what  time  to  be  taken. 
Attachment,  order  respecting,  §  939. 
Change  of  venue,  order  relating  to,  §  939. 
Evidence,  time  for  appeal  to  review,   §  939. 
Final  judgment,   §  989. 
Final  judgment,  orders  after,  §  939. 
Heirship,  appeal  in   proceedings  to   determine,   §   1664. 
Injunctions,  order  respecting,  §  939. 
Interlocutory  judgment,   §   939. 
In  various  cases,  §  939. 

New  trial,  order  relating  to,  time  for  appeal,  §  939. 
Partition,  order  respecting,   §  939. 
Probate  proceedings,  orders  and  decrees  in,  §  1715. 


APPEAT^S.  Wl 

Receiver,  order  relating  to,  §  939. 
Within  what  time  may  be  taken,  §  939. 

How  taken;    notice,  undertaking,  or  deposit. 

Deposit  In  lieu  of  un'dertaking,  §§  940,  941,  948,  949. 

Deposit,  waiver  of,  §  948, 

How  taken,  §  940. 

Notice  ot  §  940. 

Notice  of,  appellant  must  furnish  copy,  §§  950-952. 

Notice  of,  filing  and  serving,  §  940. 

Trustee's  account  after  distributi-on,  appeal  from,  how 

taken,  §  1701. 
Undertaking,  attachment,  on  appeal  from,  §  94G. 
Undertaking,  dispensing  with,  when  appellant  is  execu- 
tor, trustee,  etc.,  §  946. 
Undertaking,  exception  to  sureties,  §  948. 
Undertaking,  executor,  official  bond  sufficient,  §  9G5. 
Undertaking,  final  bond  of  guardian  sufficient,  §  965. 
Undertaking,  hov/  certified,  §  953. 
Undertaking,  in  cases  not  specified,  §  949. 
Undertaking,  insufllcient,  dismissal,  §  954. 
Unxiertaking,   insufficient,   new    bond,   §   954. 
Undertaking,  justification  of  sureties,  §  948. 
Undertaking    may    be    in    one    instrument    or    several, 

§  947. 
Undertaking  necessary  unless  waived,  §  940. 
Undertaking,  requisites  of,  §  941. 
Undertaking,  sureties,  stipulation  for  judgment  against, 

§   942. 
Undertaking,  sureties,  subrogation  of,  §  1059. 
Undertaking,    sureties,    judgment   payable    in    specified 

kind  of  money,  when,  §  942. 
Undertaking,  time  of  filing,   §   940. 
Undertaking,  time  to  file,  extension  of,  §  1054. 
Undertaking  to  stay  proceedings:    See  post,  Effect  of. 

Stay  of  Proceedings. 
Untlertaking,  waiver  of,  §§  940,  948. 
Undertaking,    where    judgment     directs     payment     of 

money,  §  942. 
Undertaking,   where   judgment   for   sale   of   mortgaged 

premises,  §  945. 
Undertaking,  where  judgment  directs  delivery  of  docu- 
ments or  personalty,  §  943. 

Code   Civil  Proc — 51. 


Undertaking,  where  judgment  directs  appointment  of 
receiver,  §  943. 

Undertaking,  where  judgment  directs  sale  of  person- 
alty on  foreclosure,  §  943. 

Undertaking,  where  judgment  directs  sale  or  delivery 
of  realty,  §  944. 

Undertaking,  where  judgment  directs  execution  of  con- 
veyance or  other  instrument,  §  944. 

Undertaking,  where  order  directs  issuance  of  alias 
writ  of  possession,  §  1210. 

Questions,  how  presented  for  review;    record  on  appeal. 

Affidavit,  part  of  record  on,  §  661. 

Bill  of  exceptions,  appellant  must  furnish,  §  950. 

Bill  of  exceptions  used  on  motion  for  new  trial  may  be 

used  on,  §  950. 
Bill  of  exceptions:    See  Exceptions. 
Certificate    of   clerk    as     to    correctness    of    transcript, 

§  953. 
Certification  of  undertakings  and  copies,  §  953. 
Copies,  how  certified,  §  953. 
Corporation,   judgment-roll   on   appeal   from   judgment 

dissolving,  §  1233. 
Findings  of  referee,  how  reviewed,  §  645. 
Judgment-roll:    See  Judgment-Roll. 
Judgment-roll,  appellant   must  furnish,   §   950. 
Judgment-roll,  what  constitutes,  §  670. 
Papers,  dismissal  for  failure  to  furnish,  §  954. 
Papers  to  be  used  on  appeal  from  judgment,  §  950. 
Papers  to  be  used  on  appeal  from  judgment  rendered 

on  appeal,  §  951. 
Papers  to  be  used  on  appeal  from  orders,  except  or- 
ders granting  or  refusing  new  trials,  §  951. 
Papers  to   be  used   on  appeal   from   order  granting  or 

refusing  new  trial,  §  952. 
Record  on,  what  constitutes,  §  661. 
Statement  on:   See  Statement. 
Statement  settled  after  motion  for  new  trial  may  be 

used  on,  §  950. 

Effect  of  appeal;    stay  of  proceedings. 

Action  is  deemed  pending  during,   §   1049. 
Attachment,  undertaking  to  continue,  §  946. 


APPEALS. 


8oa 


Effect  of,  aud  the  giving  of  security,  §  946. 

Effect  of,  on  attachment,  §  94G. 

Effect  of,  on  proceedings  below,  §  946. 

Eminent  domain,  effect  of,  §  1257. 

Execution,  property  levied  on,  released  by,  §  946. 

Forcible  entry,  appeal,  effect  of  as  stay,  §  1176. 

Judgment  for  delivery  of  documents  or  personalty, 
stay  of,  what  necessary,  §  943. 

Releases  property  from  levy,  §  946. 

Stay  of  judgment  on,  how  affects  lien  of  judgment, 
§  671. 

Stays  proceedings  below,  §  946. 

Stay,  perfection  of  appeal  is  not,  in  what  cases,  §  949. 

Stay,  perfection  of  appeal  operates  as,  when,  §  949. 

Undertaking  to  stay  deficiency  judgment,  §  945. 

Undertaking  to  stay  judgment  appointing  receiver, 
§  943. 

Undertaking  to  stay  judgment  directing  foreclosure  of 
chattel  mortgage,  §  943. 

Undertaking  to  stay  judgment  for  delivery  of  docu- 
ments or  personal  property,  §  943. 

Undertaking  to  stay  judgment  for  execution  of  instru- 
ment,  §   944. 

Undertaking  to  stay  judgment  for  sale  or  delivery  of 
realty,  §  945. 

Un-dertaking  to  stay  judgment  of  foreclosure,  §  945. 

Undertaking  to  stay  money  judgment,  affidavits  of 
sureties,  §  942. 

Undertaking  to  stay  money  judgment,  liability  of 
sureties,  §  942. 

Undertaking  to  stay  money  judgment,  requisites,  §  942. 

Undertaking  to  stay  order  granting  alias  writ  of  pos- 
session, bond  necessary,  §  1210. 

Dismissal    of   appeal. 

Effect  of,  §  955. 

For  failure  to  furnish  requisite  papers,  §  954. 

Insufflcient  undertaking,   §   954. 

Insufficient  undertaking,  new  undertaking,  §  954. 

Sureties  becoming  insufficient,  §  954. 

When  will  be  dismissed,  and  when  not,  §  954. 

Hearing  and  review. 

Contested  election  cases,  preference  given  to,  §  57. 


I  APPEALS. 

Errors    not    affecting    substantial    rights    disregarded, 

§  475. 
Error  not  presumed  prejudicial,  §  475. 
Orders  reviewable  on  appeal  from  judgment,  §  956. 
Probate  proceedings,  preference  given,  §  57. 
Review  of  finding  as  to  claims  of  mariners,  §  826. 
Review,  what  subject  to,  §  956. 
Seamen,  review  of  findings  as  to  claims,  §  826. 
What  may  be  reviewed  on  appeal  from  judgment,  §  956. 

Judgment  on;    remedial  powers;   reversal. 

Court  may  take  what  action,  §  956. 

Decision  to  be  in  writing,  §  53. 

Error  disregarded  unless  substantial  rights  affected, 
§  475. 

Judgment:   See  Supreme  Court. 

Judgment  on  appeal,  certificate  of  attachment  or  en- 
try of,  §  958. 

Judgment,  when  becomes  final,  §  4. 

Modifyin-g  judgment  on,  §  957. 

New  trial,  passing  on  question  of  law  Involved,  §  &3. 

Powers  of  supreme  court,  §§  53,  957. 

Remedial  powers  of  appellate  court,  §§  53,  957. 

Reversal  of  order  appointing  guardian,  validity  of  acts, 
§  966. 

Reversal,  new  action,  within  what  time  may  be 
brought,  §  355. 

Reversal  of  order  appointing  executor,  validity  of  acts, 
§  966. 

Reversal  not  dojreed,  except  for  substantial  errors, 
§  475. 

Reversal  of  judgment,  restitution  or  rights,  §  957. 

Reversal,  restitution  where  property  sold  under  exe- 
cution, §  957. 

Trustee's  account,  decree  settling  conclusive  on  aflSxm- 
ance,  §  1701. 

Rehearing  and  hearing  in  bank. 
Ordering  case  to  be  heard  in  bank,  §  44. 
Rehearing,  §  44. 

Costs  and  damages  on  appeal. 
Costs    of,    discretionary   with   court    in    what    cases, 
§  1027. 


Costs  on,  how  claimed  and  recovered,  §  1034. 
Costs  on  probate  appeals,  discretion  as  to,  §  1720. 
Costs  on  review,  other  than  by  appeal,  §  1032. 
Damages,  when  appeal  for  delay,  §§  957,  980. 

Remittitur. 

Generally,  §  958. 

Judgment  to  be  remitted  to  court  from  which  appeal 

taken,  §  53. 
Remittiturs  in  transferred  cases,  §  56. 

Appeals  from  inferior  courts. 

Superior  court,  bond,  justification  of  sureties  on,  §  92. 

Superior  court,  cause  to  be  tried  anew,  §  980. 

Superior  court,  code  provisions  not  applying  to  appeals, 
§  959. 

Superior  court,  costs,  §  980. 

Superior  court,  damages,  where  taken  for  delay,  §  980. 

Superior  court,  deposit  in  lieu  of  undertaking,  §  978. 

Superior  court,  dismissal,  §  980. 

Superior  court,  docket  of  justice  of  peace  must  con- 
tain  notice   of,   §   911. 

Superior  court,  docket  of  justice  of  peace  to  contain 
receipt  of  bond  on  appeal,  §  911. 

Superior  court,  fine  for  not  transmitting  papers,  §  977. 

Superior  court,  how  taken,  §§  92,  974. 

Superior  court,  judgment,  effect  and  enforcement  of, 
§   980. 

Superior  court,  notice  of,  filing  and  serving,  §  974. 

Superior  court,  notice  filed  with  justice's  clerk,  §  92. 

Superior  court,  notice  what  to  state,  §  974. . 

Superior  court,  papers  to  be  filed  with  justice's  clerk, 
§   92. 

Superior  court,  powers  of  such  court,  §  980, 

Superior  court,  proceedings  therein,  §  980. 

Superior  court,  provisions  of  code  applicable,  §  980. 

Superior  court,  questions  of  fact,  action  tried  anew, 
§  976. 

Superior  court,  questions  of  fact,  no  statement  neces- 
sary, §  976. 

Superior  court,  questions  of  law,  hearing,  what  may 
be  referred  to  on,  §  975. 

Superior  court,  questions  of  law,  statement,  contents 
of,  §  975. 


806  APPEALS— APPEARANCE. 

Superior  court,  questions  of  law,  statement,  time  to 
file,  §  975. 

Superior  court,  questions  of  law,  statement,  amend- 
ments to,   §   975. 

Superior  court,  statement  and  amendments,  settlement 
of,   §§  92,  975. 

Superior  court,  stay  of  proceedings,  officers'  fees,  §  979. 

Superior  court,  stay  of  proceedings  on  filing  undertak- 
ing, §  979. 

Superior  court,  sureties,  exception  to,  and  justification 
of,  §  978. 

Superior  court,  time  for  appeal,  §§  939,  974. 

Superior  court,  transmission  of  papers,  §  977. 

Superior  court,  transmission  of  papers,  compelling  the, 
§  977. 

Superior   court,   undertaking,    requisites   of,   §    978. 

Superior  court,  what  papers  to  be  transmitted,  §  977. 

Superior  court,  who  may  take,  §  974. 

Supreme  court,  appeal  to  from  justice's  court,  §  964, 

APPEARANCE,  answer  is,   §   1014. 

Attorney  for  absent  or  minor  heirs,  §  1718. 

Attorney,  on  accusation  for  removal,  §§  292,  293. 

Bail  for,  on  arrest  for  contempt,  §  1213. 

Cures  defective  service,  §  582. 

Defendant,  of,  equivalent  to  personal  service,  §  416. 

Demurrer  is,  §  1014. 

Effect  of,  where  summons  not  issued  or  served.  §  581. 

Eminent   domain,  who  may  appear,   §  1246. 

Escheat,  who  may  appear,  §  1271. 

Guardian,  by,  §  1722. 

Joint  contract,  appearance  where  one  defendant  ap- 
pears or  is  served,  §  406. 

Justice's  court,  trial  in,  when  party  fails  to  appear, 
§   884. 

Notice  of,   §   1014. 

Notice  waived  by,  §  1306. 

Proceedings  to  compel  the  supplementary  proceedings, 
§   715. 

Summons,  time  for  to  be  inserted  in,  §  407. 

Time  for,   §  407. 

Trial  of  actions  on,  §  581. 

Vessels,  actions  against,  who  may  appear  and  delenfl, 
§  821. 


APPEARANCE— ARBITRATION.  807 

Waiver  of  findings  by  failure  to  appear,  §  G34. 
Waiver  of  jury  trial  by  failure  to  make,  §  631. 
Waiver  of  summons  by,  §§  406,  416,  581. 
What  constitutes,  §  1014. 

APPELLANT,  who  is,  §  936. 

APPLICATIONS,    repeated     for     same     order,     forbidden, 
§§  182.  183. 

APPRAISEMENT:  See  Estates  of  Decedents. 
Appointment  of  appraisers  at  chambers,  §  166. 
Homestead,  of,  appeal  from  report,  §§  939,  963. 
Ward's  estate,  of,  §  1773. 

ARBITRATION,  adjournment,  §  1284. 

All  arbitrators  must  meet  and  act,  §§  1053,  1285. 

Appeal  from,   §   1289. 

Arbitrators,  majority  may  determine  question,  §  1285. 

Arbitrators  must  be  sworn,  §  1285. 

Arbitrators,   power  of,   to  appoint    time   and   place  ot 

hearing,  §  1284. 
Arbitrators,  powers  of,  to  take  evidence,  §  1284. 
Arbitrators,   quorum,   §   1053. 
Award,  compelling  arbitrators  to  make,  §  1283. 
Award,  correcting,  §  1288. 
Award,   delivery   of,    §   1286. 
Award,  enforcement  of,  §  1283. 
Award,  filing  and  entry  of,  §  1286. 
Award  has  effect  of  judgment,  when,  §  1286. 
Award,  modifying,  §  1288. 

Award,  modifying  or  correcting,  grounds  for,  §  1288. 
Award,  power  to  make,  §  1284. 
Award,  presumption  that  all  matters  submitted  passed 

on,  §  19G3. 
Award,   signing   of,   §   1286. 
Award  to  be  in  writing,  §  1286. 
Award,  vacation  of,  grounds  for,  §  1287. 
Boundaries  of,  §  1281. 
Damages  on  revocation,  §  1290. 
Number  of  arbitrators,  §  1282. 
Oaths  by  arbitrator,  §  1284. 
Partition,  §  1281. 


SOS  ARBITRATION— ARREST    AND    BAIL.. 

Powers  of  arbitrators,  §  1284. 

Quorum  of  arbitrators,  §  1053. 

Subjects  of,  §  1281. 

Submission  to,  entry  of,  as  order  of  court,  §  1282. 

Submission  to,  filing  with  clerk  and  entry  of,  §  1283. 

Submission  to,  must  be  in  writing,  §  1282. 

Submission  to.  revocation  of,  §  1283. 

Submission  to,  revocation  of,  what  may  be  recovered 

in  case  of,  §  1290. 
Title  to  real  property  may  not  be  submitted  to,  §  1281. 
What  may  be  submitted  to,  §  1281. 

ARGUMENT,  case  may  be  brought  before  court  for,  when, 
§   665. 
Order  of  counsels',  §  607. 
Reserving  case  for,  §§  664,  665. 

ARREST  AND  BAIL. 

Arrest. 

Administrator,  arrest  of,  §  1449. 

Affidavit  for,  §§  481,  862. 

Affidavit  and  order  of  arrest  to  be  delivered  to  sheriff, 

and  copy  to  defendant,  §  484. 
Arrested   party,    application     by,    for   postponement   or 

trial  in  justice's  court,  §  876. 
Code  prescribes  only  mode  of,  §  478. 
Contempt,  arrest  in:   See  Contempt. 
Defendant,  when  subject  to,  §  479. 
Discharge   of   persons  imprisoned   on   civil   process,   §§ 

1143-1154.     See  Prisoner. 
Entry  of  judgment  in  justice's  court  when  defendant 

subject  to,  §  893. 
Escape,  liability  of  sheriff,  §  501. 
Execution,  arrest  on,   §  682. 
Forcible  entry  and  detainer,  in,  §  1168, 
For  embezzlement,  §  479. 
For  fraud,  §  479. 
Grounds   for,    §    479. 
How  made,  §  485. 

In  action  for  fine  or  penalty,  §  479. 
Justice's  courts,  in,  §§  8G1-865.     See  Justice's  Court. 
Malicious,  joinder  of  actions,  §  427. 
Mandamus,  disobedience  of,   §  1097. 
Manner  of,  prescribed  by  code,  §  478. 


ARREST    AND    BAIL.  SOU 

Motion  to  vacate,  §  503. 
Motion  to  vacate,  affidavit,  §  503. 
Motion  to  vacate,  wtien  granted,   §   5U4. 
Of  debtor  in  supplementary  proceedings,   §  715. 
Of  judgment  debtor,  §§  682,  684. 
Order  of,   by  whom  made,  §  480. 
Order  of,  filing,  §  492. 
Order  of,  form  of,   §  483. 
Order  of,  undertaking  of  plaintiff,   §  482. 
Order  of,  when  made,  §  483. 
Privilege  of  witness  from,  §  2067. 

Probate,  arrest  for  refusal  to  obey  citation  in,  §  1460. 
Public  administrator,   arrest  of,   §   1734. 
Quo  warranto,  in,  §  804. 
Sheriff,  return,  etc.,   §   492. 

Support  of  prisoner,  plaintiff  must  furnish,  §  1154. 
Undertaking  for,  §  862. 
Vacating  arrest,  §  503. 

When  defendant  about  to  leave  state,  §   479. 
When  defendant  about  to  remove  or  dispose  of  prop- 
erty, §  479. 
When  property  concealed  or  disposed  of,   §  479. 
Witness,  arrest  for  refusal  to  testify,  §  1994. 
Witness,  arrest  of,  when  void,  §  2068. 
Witness,  liability  of  officer  arresting,  §  2069. 
Witness,  when  exonerated  from  arrest,  §  2067. 
Witness,  when  entitled  to  release  frorii,  §  2070. 

Bail. 

Acceptance  of  undertaking  by  sheriff,   §   492. 

Allowance  of,  exonerates  sheriff,  §  496. 

Allowance  of,  manner  of,  §  496. 

By  person  arrested  for  contempt,  §§  1213,  1215. 

Contempt,  form  and  condition  of  bond,  §  1215. 

Defendant  discharged  on,  §  486. 

Delivery  of  undertaking  to  sheriff,  §  492. 

Deposit,  certificate  of,  §  497. 

Deposit,  defendant  discharged  on,  §  486. 

Deposit,  how  applied  or  disposed  of,  §  500. 

Deposit  instead  of  bail,  §  497. 

Deposit,  payment  of,  into  court  by  sheriff,  §  498. 

Deposit,  substituting  bail  for,  §  499. 

Deposit  when  bail  reduced,  §  497. 


SIO  ARREST    AND    BAIL^ASSIGNM  liNT. 

Exonerated  by  surrender  of  defendant,   §   488. 
Exonerated    by   death   or   imprisonment   of    defendant, 

§   491. 
Exonerated,  when,   §§   488,  489. 
Exonerated,  when  not,  §  489. 
Failure  to  object  to,  §  492. 
.    Filing  of  undertaking,  §§  482,  492. 
Force  of,  §  487. 
How  given,   §   487. 
How   proceeded   against,    §   490. 
Judgment   against  sheriff,   proceedings  on,   §   502. 
Justification,    §    494. 
Justification,  manner  of,  §  495. 
Justification,  notice,  §  493. 
Motion  to  reduce,  §  503. 
Motion  to  reduce,  affidavit,  §  503. 
Motion  to  reduce,  when  granted,  §  504. 
New  undertaking  when  other  bail  given,  §  493. 
Qualifications  of,  §  494. 
Refusal  by  plaintiff  to  accept  bail,  §  492. 
Rejection  of  u.ndertaking  by   sheriff,   §  492. 
Sheriff  when  liable  as,  and  his  discharge,  §  501. 
Substituting   for   deposit,    §   499. 
Surrender  of  defendant  by,  §§  488,  489. 
Surrender   of   defendant,   time    for    and    how     accom- 
plished,   §§   488,   489. 
Undertaking   of   bail,    §    487. 
Undertaking  of  plaintiff,  §  482. 

ASSAULT,  juris'diction  of  justice's  court,  §  115. 
Limitation  of  action  for,  §  340. 

ASSEMBLY,  to  present  impeachments,  §  37. 

ASSESSMENT,  claim  and  delivery,  §   510. 

Costs  of  course  in  action  involving,  §  1022. 
Limitation  of  action  for  stock  sold  for,  §  341. 
Limitation  of  action  to  contest,  §  349. 
Value  of  property  taken  for  public  use,  §  1248. 

ASSIGNMENT,  chose,  of,  not  to  prejudice  defense,  §§  368, 
385. 
Cross-demand  not  barred  by,   §  440. 
'">t  to  prejudice  right  of  setoff,  §  368. 

ydemptioner  to  produce  copy  of,  §  705. 
Transfer  of  interest  does  not  abate  action,  §  385. 


ASSIGNMENT    FOR    CREDITORS— ATTACHMENTS.  811 

ASSIGNMENT  FOR  CREDITORS,  salaries  and  wages  as 
preferred  claims,   §   1204. 

ASSISTANCE,  bond  on  appeal  from  order  directing  alias 
writ,  §  1210. 

Execution,    §   682. 

Re-entry  after  eviction,  effect  of,   §   1210. 

Re-entry  after  eviction,  proceedings  on,   §  1210. 

Re-entry,  alias  writ  of  possession,  appeal  from  order, 
stay,    §    1210. 

Writ  of,  to  put  plaintiff  in  eminent  domain  in  pos- 
session, §  1254. 

ASSOCIATION,  associates  may  be  sued  in  name  of,  §  388. 
Change  of  name,  how  effected,  §  1276. 
Savings  and  loan,  dissolution  of,  §  1234. 

ATTACHMENTS.  Administrator,  against,  to  compel  at- 
tendance, §  1440. 

Appeal,  effect  of,  undertaking,  §  946. 

Appeal  from  order  respecting,  time  for,  §  939. 
Appeal  lies  from  order  respecting,  §  963. 

Contempt,  for,  §  1212. 

Estate  of  decedent,  to  compel  inventory  of  after-dis- 
covered property  of,  §1451. 

Executor,  against,  for  failure  to  return  account  of 
sale,  §  1575. 

Executor,  against,  to  compel  accounting,  §§  1627,  1628, 
1630. 

Inventory  of  after-discovered  property  of  decedent,  to 
compel,  §  1451. 

Judgment  for  plaintiff,  how  satisfied,   §   550. 

Juror,  against,  to  compel  attendance,   §   238. 

Justice  court,  attachment  in,  §§  8C6-869.  See  Justice's 
Court. 

Preferred  claims  for  wages,  §  1206. 

Recorder,  how   to  index  attachments,   §   542. 

Surviving  partner,  against  to  compel  accounting, 
§  1585. 

Will,  of  person  not  producing,  §  1302. 

Witness,  of,  §§  177,  1993. 

Issuance,  form  and  contents. 

Affidavit  for,  what  to  contain,  §  538. 
Directed  to  sheriff,  §  540. 
Form  of,  §  540. 


§12  ATTACHMENTS. 

Several  writs  may  issue  to  different  sheriffs,  §  540. 

Time  to  issue,  §  537. 

When  and  in  what  cases  may  issue,  §  537. 

Writ  directed  to  sheriff,  §  540. 

Writ  to  state  what,  §  540. 

Undertaking  on. 
Amount  of,  §  539. 

Delivered  to  defendant  on  judgment  in  his  favor,  §  553. 
Exception  to  sureties,  §  539. 
Generally,   539. 

Justification  of  sureties,   §   539. 
Requisites,  §   539. 
Vacating,  for  failure  of  sureties  to  justify,  §  539. 

What  may  be  attached. 

Corporation,   shares  of  stock   may   be  attached,   §   541. 

Debts  may  be  attached,  §  541. 

Materials  for  building  not  subject  to,   §   1196. 

Vessels,  attachment  of:    See   Shipping. 

What  property  subject  to,  §  541. 

Levy;    property,    how   attached. 
Accounts  may  be  collected  without  suit,  §   547. 
Accounts  collected,   receipt  of  sheriff  for,    §   547. 
Attorney  to  give  written  instructions  what  to  attach, 

§  543. 
Credits,  how  attached,   §  542. 
Custody,    personal    property  must  be  taken  in,   when, 

§  542. 
Debts  and  credits  attached,  to  be  collected,   §  547. 
Debts,  how  attached,  §  542. 
Personal   property,  how  attached,  §   542. 
Personal  property  not  susceptible  of  manual  delivery, 

how  attached,  §  542. 
Personal     property     susceptible     of     manual     delivery, 

how  attached,  §  542. 
Real  property,  how  attached,  §  542. 
Recorder  to  Index  attachment  of  realty,  §  542. 
Shares  of  stock,  how  attached,  §  542. 

Garnishment. 
Credits  or  personalty  in  possession  of    third    person, 

attachment  of,  §  543. 
Examination  of  defendant  on  oath,  §  545. 


ATTACHMENTS.  8U 

Examination    of    defendant,    delivery    of  'property    to 

sheriff  after,  §  545. 
Garnishee,  citation  to  appear,  §  545. 
Garnishee,  examination  of,  on  oath,  §  545. 
Garnishee,    not    delivering    up    property,    liability    of, 

§  544. 
Garnishee,  service  on,  §§  542,  543. 
Memorandum  of  credits,  garnishee,  to  give,  §  546. 
Memorandum,  party  refusing,  to  pay  costs,  §  546. 

Claim  of  property;    preferred  claims. 
Third  person,  property  claimed  by,  how  tried,  §   549. 
Wages,  claim  for,  preferred,  §  1206. 

Release;   discharge;  judgment  for  defendant. 

Delivery  to  defendant  when  judgment  in  his  favor, 
§  553. 

Discharge  of,  at  what  time  may  be  moved  for,  §  556. 

Discharge  of,  for  irregularity,  §  558. 

Discharge  of,  grounds  for,  §§  556,  558. 

Discharge  of,  motion  for,  §§  554,  556. 

Discharge  of,  motion  for,  afhdavits,  §  557. 

Discharge  of,  motion  for,  amendment  for  irregularity, 
§  558. 

Discharge   of  on   judgment  for  defendant,   §   553. 

Judgment  for  defendant,  what  to  be  delivered  to  him, 
§   553. 

Release  of,  delivery  of  property  and  proceeds  to  de- 
fendant, §  554. 

Release  of,  on  giving  undertaking,  §  554. 

Release  of,  on  real  property,  manner  of,  §  560. 

Release  of,   on  real  property,  recording,  §§   559,   560. 

Release  of,  proceedings  for,  §  554. 

Release  of,  proceedings  for,  before  whom  taken,  §  554. 

Release  of,  undertaking  for,  §§  554,  555. 

Release  of,  undertaking  of  defendant,  §  555. 

Release  of,  undertaking  for,  justification  of  sureties, 
§§  554,  555. 

Release  of,  upon  what  terms  granted,  §  555. 

Release  of,  when  granted,  §§  554,  555. 

Undertaking  of  defendant,  §  540. 

Undertaking  by  defendant,  when  suit  may  bo  brought 
on,  §   552. 


JU  ATTACHMENTS— ATTORNEY. 

Sale    of    property;    disposition    of    proceeds;    increase    or 

deficiency. 
Balance  due,  execution  for,  §§  550,  551. 
Balance  due,  how  collected,  §§  551,  552. 
Delivery   of   property   or   proceeds   to   defendant   when 

judgment  satisfied,  §§  550,  551. 
Perishable  property,  how  sold,  §  547. 
Perishable  property,  proceeds  of,  §  550. 
Sale  of  property,  manner  of,  §  548. 
Sale  of  property,  notice,  §§  548,  550. 
Sale  of  property  may  be  as  under  execution,  §  548. 
Sale  of  property  under  execution,  §  550. 
Sale   of    property    where   interests   of   parties   require, 

§  548. 

Inventory  and    return   by  sheriff. 

Inventory,  how  made.  §  546. 
Inventory,  full,  sheriff  to  make,  §  546. 
Memorandum  of  property,  §§  545,  546. 
Return  of  writ,  manner  of,  §  559 
Return  of  writ,  time  for,  §  559. 

ATTORNEY,  absence  of,  postponement  of  trial  for,  §  595. 
Argument,  order  of.  at  trial,  §  607. 
Contempt  for  assuming-  to  be,  §  1209. 
Contempt  for  practicing  without  license.  S  281. 
Conviction    of    crime,    certificate    thereof    to    supreme 

court,  §  2S8. 
Death  of,  notice  to  appoint  substitute,  §  286. 
Exemption  from  jury  duty,  §  200. 
Fees  for  in  administration  of  estates.  §§  1616,  1619. 
Judge  pro  tempore,  attorney  may  be  selected  to  act  as, 

§   72. 
Legislature,   extension   of  time   during   attendance   on, 

§   1054. 
Privileged  communications,  §  1881. 
Roll  of,  how  kept,  §  2S0. 
Supreme  court,  of,  who  are,  §  275. 
Witness,  as,  §  1881. 

Admission;    license;    who  may  act  as;    disqualification. 

Admission  after  examination,  §  277. 
Admission,  examination  of  candidates  for,  §  276. 
Admission,  certificate  of  and  license,  §  277. 
Admission,  oath  on,  §  278. 


ATTORNEY.  815 

Admission,  qualifications  of,  §  275. 
Admission  of,  from  other  state  or  country,  §  279. 
Admission,  who  may  be  admitted  as,  §  275. 
Disqualification  of  county  clerk  to  practice,  §  171. 
Disqualification  of  judge  to  practice,  §  171. 
Disqualification,  judge  or  justice  having  acted  as,  §  170. 
Disqualification,    receiver,   attorney    disqualified   to   be, 

when;  §  5C6. 
Examination  of,  §  276. 
Hasting's    College    of    Law,    effect    of    diploma    from, 

§  280a. 
License  of,  §§  277-279. 
License,  oath  of,  indoisement  of  on,  §  278. 
License,  practicing  without  is  contempt,   §  281. 
License,  practicing  without,  penalty   for,   §  281. 
List  of,  clerk  of  district  court  of  appeals  to  transmit 

to  supreme  court,  §  280. 
Roll,  attorney  must  sign,  §  280. 
Who  may  act  as  in  justice's  court,  §  842. 
Who  may  not  act  as  in  justice's  court,  §  96. 
Who  may  act  as  in  police  court,  §  281. 

Compensation  of. 

Compensation  of,  left  to  parties,  §  1021. 
Fee  on  bond  in  action  in  condemnation,  §  1251. 
Fees  in  action  involving  mechanic's  lien,  §  1195. 
Fees  in  escheat  proceedings,  §  1271. 
Fees  in  foreclosure  suit,   §  726. 
Fees  in  partition,  §§  796,  798. 

Fees  in  suit  by  executor  on  claim  against  estate,  §  1510. 
Fees  where   injunction   vacated   or   dissolved    in    case 
involving  waters,  §  532. 

Appointment  of. 

Absent  or  minor  heirs,  appointment  of,  §  1718. 
Appointment  of,  to  represent  party  in  partition,  §  763. 
Probate  court,  appointment  by,  §§  1307,  1718. 
Will  contest,  appointment  on,  §  1307. 

Change  and  substitution  of. 

Ceasing  to  act,  notice  to  appoint  substitute,  §  286. 
Death  of  attorney,  notice  to  appoint  substitute,  §  286. 
Removal  of,  notice  to  appoint  substitute,  §  286. 
Substitution,  how  made,  §  284. 
Substitution,  notice  of,  §  285. 

Duties  and   powers  of. 
Attachment,  in,  to  give  written  instructions  what  to  at- 
tach, §  543. 


tM  ATTORNEY. 

Authority  of,  §  283. 

Authority    to    acknowledge    satisfaction    of    judgment, 

§  283. 
Authority  to  bind  client,  §  283. 

Authority  to  receive  money,  and  discharge  claim,  §  283. 
Contempt,  neglect  or  violation  of  duty,  a,  §  1209. 
Duties  of,  §  282. 

Pleadings,  subscribing  and  verifying,  §  446. 
Replevin,   may   require    sheriff    to    take    property   in, 

§  511. 
Retraxit,  authority  to  enter,  §  581. 
Satisfaction  of  judgment  by,  §  675. 
Service  of  intervention  on,  §  387. 
Service  on,  for  nonresident,  §  1015. 
Service  on,  manner  of,  §  1011. 
Stipulations  of,   §  283. 
Verification  of  pleading  by,  §  446. 

Removal  or  suspension. 
Accusation  to  be  verified,  §  291. 
Accusation  to  be  vv-ritten,  §  290. 
Accusation,    objection,    no    particular    form    necessary, 

§  2S5. 
Accusation,  demurrer  to,  §  295. 
Accusation,  what  must  state,  §  291. 
Accusation,  objection  to,  to  be  written,  §  295. 
Accusation,  answer  to,  §  296. 
Accusation,  answ-er  or  objection  to,  §  294. 
Accusation,  denial  of,  may  be  oral  without  oath,  §  295. 
Accusation,   refusal  to   answer,   proceedings  on,   §   297. 
Appearance,  §  293. 

Appearance,  want  of,  proceedings  on,  §  293. 
Appearing  without  authority,  §  287. 
Citation,  §  292. 

Conviction  of  crime,  removal  for,  §  287. 
Grounds  for,  §  287. 
Judgment,  §   299. 

Lending  name  to  another,  removal  for,  §  287. 
Plea  of  guilty,  proceedings  on,  §  297. 
Proceedings,  how  instituted,  §  289. 
Proceedings  taken  upon  information  of  another,  when, 

§   289. 
Proceedings,  when  to  be  taken  by  court,  §  289. 
Reference  to  take  deposition,  §  298. 
Striking  name  from  roll,  §  299. 
Trial,  §  297. 


ATTORNEY-GENERAL— BILL,    OF    COSTS.  S17 

ATTORNEY-GENERAL,  escheated  estates,  duties  of,  rela- 
tive to,  §§  1269-1272. 

Need  not  verify  pleadings,  §  446. 

Power  and  duties  of,  prescribed  by  Political  and  Penal 
Cedes,   §   262. 

Usurping  olBce  or  franchise,  action  by  against  party, 
§§   803-819. 

Usurpation  of  office:   See  Usurpation  of  Office. 

AUCTION.     Bids:    See  Bids. 

Execution    ?ale  to  be  at,  §  C94. 

Partition  sale  to  be  at,  §'775. 

Sale  of  attached   vessel  at,   §   824. 

Sales  at.  memorandum  of  auctioneer,  §  1973. 

ANCIETn'T  facts,  evidence  of  common  reputation,  as  to, 
§  1870. 

AWA.RD  of  arbitrators,  §§  1286  et  seq.     See  Arbitration. 

BAGGAGE,  sheriff  may  not  interfere  v/ith,  on  attachment 
of  vessel.  §  820. 

BAIL:   See  Arrest  and  Bail. 

BAILIFF  of  supreme  court,  §§  265,  266. 

BANK.     Banking  corporation  not  to  use  name  of  friendly 

society,   §   1276. 
Dissolution,  deposits  and  dividends,  S  1234. 
Limitation  of  action  against,  for  deposit,  §  348. 
Limitation  in  action  for  payment  of  forged  or  raised, 

§    340. 
Next  of  kin,  act  nllcwing  collection  of  deposit  by,  §  768. 

BANKRUPTCY.     Law  governing  insolvent  debtors,  §  1822. 

BATTERY,  jurisdiction  of  justice's  court,   §   115. 
Limitation  of  action  for,  §  340. 

BERKELEY,  act  creating  justice's  court  in,  p.  778. 

BENEFICIARY  need  not  be  joined  as  plaintilT,  §  369. 

BIBLE,  family,  entries  in,  as  evidence,  §  1870. 

BID,  execution  sale,  at,  §   694. 
Liability  of  sheriff,  §  697. 
Officer  may  refuse,   §   G96. 
Probate  sale,  hov/  received  at,  §§  1549,  1550. 
Refusal  to  pay,  §§   695-697. 

BILL  OF  COSTS,  verifying  and  filing,  §  1033. 
Code  Civil  Proc— 52. 


818  BIT^L  OF  EXCHANGE-BOND. 

BILL  OF  EXCHANGE:   See  Negotiable  Instruments. 
Complaint  may  be  copy  of,  §  853. 

BILL  OF  EXCEPTIONS:    See  Exceptions. 

BILL  OF   PARTICULARS,  further,  §  454. 
Need  not  be  pleaded,  §  454. 

BIRTH,  declarations  of  decedent  relating  to,  §  1870. 

BLANK  in  papers  issued  by  justice  of  peace  must  be  filled, 
§  920. 

BOARD,  majority  may  act,  §  15. 

BOARD  OF  SUPERVISORS,  selection  of  jurors,  §  204. 

BOAT:   See  Shipping. 

BOND:   See   Suretyship;    Undertaking. 
Action  on,  justice's  jurisdiction,  §  112. 
Administrator's  sale,  bond  of  purchaser  at,   §   1567. 
Administrator's:   See    Executor    and    Administrator. 
Agent  for    absentee    in    distribution    proceedings,    of, 

§§    1692,    1695. 
Appeal:   See  Appeal. 
Approval  by  judge  at  chambers,  §  166, 
Chambers,  judge  may  approve  at,  §  166. 
Contractor,    of,    §    1203. 
Corporation  as  surety,  §§  1056,  1057. 
Corporation  as  surety,  statute  authorizing,  pp.  762,  763. 
Court  commissioner,  power  to  take  and  approve,  §  259. 
Eminent   domain,   security  for   the  building  of  fences, 

etc.,    §    1251. 
Executor's:   See   Executor  and   Administrator. 
Guardian's:   See    Guardian. 

Injunction,  bond  on,  vacation  or  modification  of,  §  532. 
Injunction,  respecting  waters  vacated,  bond  in  case  of, 

§   532. 
Justice's  clerk,  of,  §  86. 

Libel  and  slander,  bond  to  cover  costs  in,  p.  778,  Stats, 
Limitation  in  action  on,  §  340. 
Municipalities  need  not  give,  §  1058. 
Not   required   of   state,   county,   city,    town,    or   officer, 

§   1058. 
Officer  need  not  give,  §  1058. 
Partial   distribution   of  decedent's  estate,  for,  §§  1658, 

1661,  3662. 
Public   administrator's,    §    1727. 
Qualifications  of  sureties,  §  1057. 
Requisites  of,  in  general,  §  1057. 


BOND— BURIAL  GROUND.  810 

Several   actions   on,    costs   and   disbursements   in   case 

of,  §  1023. 
State  or  municipalities  need  not  give,  §  1058. 
Vacation  or  modification  of  injunction,  §  532. 

BOOKS  as  evidence.  §  1936. 

Containing  published   decisions,   admissible,   §  1902, 

Entries  in  official,  evidence,  §  1920. 

Historical  books  prima  facie  evidence,  §  1936. 

Inspection  may  be  ordered  and  copy  given,  §  1000. 

Judgment  book  to  be  kept,  §  668. 

Law,  presumed  correct,  §§  1900,  1963. 

Presumed   published  by  authority,  §  1963. 

Presumption  of  correctness  of,   §  1963. 

Presumption  as  to  books  purporting  to  contain  reports 

of   decisions,    §    1963. 
Science  or  art,  books  of,  prima  facie  evidence,  §  1936. 

'30UNDARY,  adverse  posbession,  §  325. 
Arbitration,   §    1281. 

Change  of,  succession  of  justices  of  peace,  §  107. 
Common  reputation,  evidence,  when  admissible,  §  1870. 
Conflicting,   which   prevail,   §   2077. 
Description   in   deeds,    §   2077. 
Determination  of.  to  lands,  §  2077. 
Evidence    as  to,  §  1870, 
Lake  as,  §  2077. 
Maps,  reference  to,   §  2077, 
Monuments,  §  2077. 
Navigable  waters  as,  §  2077. 
Non-navigable  streams  as,  §  2077. 
Road  as,   §   2077. 
Rules  for  determining,  §  2077. 
Tide  water  as,   §  2077, 

BREACH   OF   PEACE,  jurisdiction,  §   115. 
Contempt,   when,    §   1209. 

BREACH  OF  PROMISE,  to  marry,  sitting  of  court,  private, 
§    125. 

BUILDING     AND     LOAN     ASSOCIATION,    exemption    of 
shares  of  stock,  §  690. 

BUILDING  CONTRACT:   See  Mechanic's  Lien. 

BUILDINGS:    See  Public  Buildings. 

Mechanics'  liens:  See  Mechanic's  Lien. 

BURIAL  GROUND,  presumption  of  dedication  of,  §   1963, 


820  BURDEN    OF    PROOF— CERTIORARI. 

BURDEN  OF  PROOF,  who  has,  §§  1981,  1982. 

CALENDAR,  causes  must  remain  on,  till  when,  §  593. 
Clerk  must  enter  causes  on,  §  593. 
Dropping  causes  from,  §  593. 
Restoring  causes  to,  §  593. 

CAPACITY.     Want  of  a  ground  of  demurrer,  §  430. 

CARRIER,  vessels,  liability  of  on  contract  to  carry,  §  813. 

CATTLE-GUARDS,    eminent   domain,   §§    1248,    1251,    1257. 

CASE  AGREED.     Controversy  without  action,  §§  1138-1140. 

CEMETERY,  presumption  that  site  dedicated  for,  §  1963. 

CERTIFICATE.     Acknowledgment,   certificates  of,  §   1948. 
Appeal,  certificate  to  transcript,  §  953. 
Attorney's  admission   and   license,   of,   §§   277,  278. 
Clerk's,  of  jurors  drawn,  §  219. 
Deposit,  instead  of  bail,  certificate  of,  §  497. 
Evidence,  as,  §§  1901-1907. 
Evidence,  certificate  of  copy  judicial  record  of  foreign 

country   for,   §§  1906,  1907. 
Evidence,   certificate  of  copy  document  for,  generally, 

§§   1919,   1922-1924. 
Evidence,    certificate    of    copy    judicial    record    of    this 

state  or  United  States  for,  §  1905. 
Evidence,   certificate  of  written   law  or  public  writing 

of  any  country  for,   §   1901. 
Execution  sale,  of,  §§  C98,  699,  700,  1905,  1906. 
Location,  of,  as  evidence  of  ownership  of  land,  §  1925. 
Phonographic   reporter's   competency,   of,   §   270. 
Proof  of  will,  of,  §§  1317,  1318. 

Purchase,  of,  as  evidence  of  ownership  of  land,  §  1925. 
Recording  officer,  of,  is  prima  facie  evidence,  §  1833. 
Redemption  of,  §  703. 
Service  of  summons,  of,  §   415. 
Writing,    certificate   to,     form   of,   and    how   executed, 

§  1923. 

CERTIFIED  COPIES,  custodian  of  public  writing  bound  to 
give,  §  1893. 
Judicial  record  of  foreign  country,  of,  §  1907. 

CERTIORARI:   See  Review. 
Defined,   §   1067. 

Superior  court  or  judge  may  issue,  J  76. 
Supreme  court  may  issue,  §§  51,  54. 
Supreme    court    justice    may    not    grant    at    chambers, 
§    165. 


CESTUI  QUE  TRUST— CITIZEN.  «21 

CESTUI  QUE  TRUST:   See  Trust. 

Need  not  be  joined  as  plaintiff,  §  369. 

CHALLENGE:   See  Jurors. 

CHAMBERS,  power  of  judges  at,  §§  165,  166. 
Power  of  court  at,  §§  176,  1305. 
Writs  and  process  necessary  may  be  issued  at,  §  166. 

CHANGE  OF   NAME:   See  Name. 

CHARACTER,  good,  admissibility  of  evidence  of,   §   2053. 

CHARTS  as  evidence,  §  1936. 

CHATTEL    MORTGAGE,  undertaking  on  appeal  from  or- 
der of  foreclosure,  §  943. 

CHECKS.     Limitations  in  action  on  forged  or  raised  check 
§   340. 

CHIEF  JUSTICE:   See  Supreme   Court  Justices. 

CHILDREN:    See  infants. 

CHOSE   IN   ACTION,  assignment  of,  not  to  prejudice  de- 
fense, §  368. 

CITATION,   administrator,    to,   on    revocation   of    letters, 

§§  1384,  1385. 
Administrator,    to    show   cause    why  further    security 

should  not  be  given,  §§  1398,  1402. 
Attorney,  to  answer  accusation,  §  292. 
Election  contest,  to  respondent,  §  1119. 
Executor,  to,  to  render  account,  §§  1623-1625,  1628. 
Executor,    legatees,    etc.,   to,   on    contest   of   will   after 

probate,  §  1328. 
Garnishee,  to,  §  545. 
Heirs  resident  in  county,  to,  §  1304. 
Persons    intrusted    with    decedent's    estate   to   account, 

to,  §  1461. 
Person,  suspected  of  embezzling  decedent's  estate,  to, 

§§   1459,   1460. 
Probate,  in,  how  directed  and  what  to  contain,  §  1707. 
Probate,  in,  how  issued  and  served,  §§  1708,  1709,  1711. 
Sureties  on  administrator's  bond,  to,  §  1394. 
Sureties,  on  application  for  new,  §§  1398-1402. 
Sureties,   on   application  for  release,   §   1403. 
Time  for  service,  §  1711. 
CITIZEN,  bailiits  and   secretaries  of  supreme  court  shall 
be,  §  265. 
Justice  of  x)ea/'  ^  shall  be,  §  159. 


822  CITY— CLArM    AND    DELIVERY. 

CITY:   See   Municipal    Corporation. 

CITY  ATTORNEY.  Nuisance,  to  abate  when  directed  by 
supervisors,  §  731. 

Nuisance,  may  sue  to  abate.  §  731. 

Nuisance,  city  attorney  and  district  attorney  have  con- 
current right  to  abate,  §  731. 

CITY  COURTS,  abolition  of,  p.  763,  Stats, 

Transfer  of  books,  papers,  etc.,  to  justice,  p.  763,  Stats. 

CIVIL  ACTION:    See  AcUon. 

CLAIM    AND    DELIVERY,   afTidavit  for,   must  state  what, 

§  510. 
Affidavit  for,  necessary,  §  510. 
Affidavit  for,  when  and  where  filed,  §  520. 
Affidavit  misstating  value  does  not  bind  sheriff,  §  473. 
Agent,  service  of  order  on,  §  512. 
Agent,  taking  property  from,  §  512. 
Alternative  judgment,  §  667. 
Answer,  claim  to  be  made  before,  §  509. 
Concealed  property,  how  taken,  §  517. 
Costs  of  course  allowed,  when,  §  1022. 
Costs  when  recovery  less  than  three  hundred  dollars, 

§  1025. 
Damages  for  detention,  §  667. 
Delivery  to  defendant,  §  515. 
Delivery  to  plaintiff,  §§  514,  515. 
Delivery,  when  may  be  claimed,  §  509. 
Judgment  in  the  alternative,  §  667. 
Justices'  courts,  in,  §  870. 

Justice's  court,  In,  where  to  be  brought,  §  832. 
Limitation  of  action  of,  §  338. 
Notice,  when  and  where  filed,  §  520. 
Property,  how  kept  by  sheriff,  §  518. 
Redelivery,  when  defendant  entitled  to,  §  514. 
Redelivery,  undertaking  of  defendant,   §  514. 
Requisition  to  sheriff  to  take  property,  §  511. 
Service  of  order  on  defendant.  §  512. 
Sheriff's  fees.  §  518. 

Sheriff's  liability  to  third  person,  §  512. 
Sheriff's   liability   for   defendant's   sureties,   §    515. 
Sheriff's  return,  §  520. 
Sureties,  qualification  of,  §  516. 
Third  person,  claim  of  property  by,  §  519. 
Third  person,  claim  of  property  by,  affidavit,  §  519. 
Third    person,    claim    of   property    by,    undertaking   of 

plaintiff,  §  519. 


CLAIM    AND    DELIVERY— CLERK.  123 

Time  when  delivery  may  be  demanded,  §  509. 

Title,  effect  of  judgment  on,  §  1908. 

Undertaking  of  defendant,  §  514. 

Undertaking  of  defendant,  justification  of  sureties 
§  515. 

Undertaking  of  defendant,  justification  of  sureties,  fail- 
ure of,  §  515. 

Undertaking  of  plaintilT,  §  512. 

Undertaking  of  plaintiff,  and  proceedings  in  serving  or- 
der, §  512. 

Undertaking  of  plaintiff,  exception  to  sureties,  §  513. 

Undertaking  of  plaintiff,  exception  to  sureties,  failure 
to  make,  §  513. 

Undertaking  of  plaintiff  where  third  person  claims 
property,  §  519. 

Undertaking,  when  and  where  filed,   §   520. 

Verdict  in,  requisites  of,  §  627. 

Verdict  in,  assessment  of  damages,  §  637. 

CLAIM  OF  PROPERTY  in  attachment,  §  549. 
In  execution,  §  689. 
In  replevin,  §  519. 

CLAIMS:   See    Estates   of    Decedents;    Mechanics'    Liens. 
Adverse,  §§  738-751.     See  Adverse  Claim. 
Preferred,  claims  for  wages  are,   §§  825,  1204. 

CLERGYMEN,  privileged  communications,  §  1881. 

CLERK,   affidavits,   may   take,    §§    2012,   2013. 
Appraiser,  no  clerk  or  deputy  to  be,  §  1444. 
Certified  list  of  jurors  to  be  filed  with,  §  208. 
County  clerk:   See  County  Clerk. 
Duty  of,  in  contested  elections,  §  1118. 
Duty  of,  on  confession  of  judgment,  §  1134. 
Judgment,  time  to  enter,  §  664. 
Judgment,  to  enter,  §  664. 
Judgment-book,  to  keep,  §  668. 
Judgment-docket,  to   keep,   §§   671-673. 
Judgment-roll,  to  make  up,  §  670. 
Justices',  §§  86-97.     See  Justice's  Clerk. 
Mandate,  what  to  transmit  on  verdict  on,  §  1093. 
Must  enter  causes  on  calendar,  §  593. 
Must  indorse  on  complaint,  what,  §  406. 
Must  keep  register  of  actions,  §  1052. 
Partition  sales,  to  invest  proceeds  of,  §  ?89. 
Partition  sale,  duty  of,  on  investment,  §  79L 
Partition,  to  attest  decree  in,  §  1684. 


824  CLERK-CODE    OF    CIVIL    PHOCEDURE. 

Register  of  actions,  to  keep,  §  1052. 
Roll  of  attorneys,  to  keep,  §  280. 
Seal  to  be  kept  by,  §  152. 
Supreme  court,  of,  §  262. 
Testimony,  when  to  take,  §  1051. 

To    return    writ    of    review    with    transcript,    9    X070. 
In  probate  matters. 
Petition  for  letters  filed  with,  §  1371. 
To  set  petition  for  hearing,  §  1373. 
To  file  and  record  certificate  of  proof,  §  1318. 
To  post  notices,   §  1373. 
To  issue  citation,  §  lo84. 
To  record  letters,  etc.,  §  1387. 
To  sign  and  seal  letters,  §  1356. 
To  issue  letters,  §  1412. 
To   enter   claims   on   register,   §   1497. 
To  sign  citation,  §  1707. 
When  to  issue  subpoena  and  citations,  §§  1707,  1708. 

CLOSED    DOORS,  trial  with,   §   125. 

CLOUD  ON   TITLE,  parties  in  action  to  remove,  §  381. 
See  Quieting  Title. 

CODE  OF  CIVIL  PROCEDURE,  action  pending,    how    a^ 

fects,  §  8. 
Cited,  enumerated,  etc.,  how,  §  19. 
Construction  of:   See  Construction. 
Construction  of  words  and  phrases,  §  16. 
Construed  liberally,  §  4. 

Continuation  of  statutes  and  common  law,  §  5. 
Divided  Into  four  parts,  §  1. 

Establishes  law  on  subjects  to  which  it  relates,  §  4. 
Is  continuation  of  statutes  and  common  law,  g  5. 
Justices'  court,  sections  applicable  to,  §  925. 
Limitation  statute,  how  code  affects,  §  9. 
No  statute  continued  in  force  because  consistent  with, 

§  18. 
Not  retroactive,  §  8. 
Office,  repeal  of,  by  code,  §  7. 
Penal,  provides  for  prosecution  of  criminal  aQtioi\,  9 

31. 
Private  statutes  not  repealed  by,  §  18. 
Repeal  by,  does  not  affect  existing  rights,  §  18. 
Repeal  by,  does  not  revive  former  laws,  9  18. 
Repealing  effect,  §  18. 
Retroactive  effect,  §  3. 

Rights  existing  or  accrued  not  affected  by,  §  18. 
Rights  not  affected  by,  §  8. 


CODE    OF    CIVIL    PROCEDURE— COMPLAINT.  S2S 

Statutes  not  expressly  continued  In  force  repealed  by, 
§  18. 

Statutes  in  derogation  of    common    law,    construction 
of,  §  4. 

Statutes  repealed  by,  §  18. 

Tenure  of  office,  how  affected  by,  §  6. 

When  takes  effect,  §  2. 
CODICIL,  will  includes,  §  17. 

See  Wills.  I. 
COLOR  OF  TITLE:   See  Adverse  Possession. 
COMMISSION,  executor  or  administrator's,  §  1618. 

To   take   testimony:     See   Deposition. 
COMMISSIONER:   See  Court  Commissioner. 

Findings  of,  force  and  effect  of,  §  644. 

Findings,   judgment   on,    §    644. 

Foreclosure,  suits  for,  commissioners  in,  §  72( 

Insurance:    See   Insurance   Commissioner. 

May  take  affidavits  in  another  state,  §  2013. 
COMMON  LAW,  code  continuation  of,  §  5. 

Statutes  In  derogation  of  construction  of,  §  4. 
COMMUNITY  PROPERTY,  inventory  of  decedenr'a  cdtate 
to   show  what  is,   §   1445. 

Proceedings  to  determine  interest  on  death  lit  spouse, 
§    1723. 
COMPENSATION:   See  Salary. 

Agent    of    absentee    in     distribution     proct'<jdings,   of, 
§  1692. 

Appraisers  of  decedent's  estate,  of,  §  1444. 

Attorneys',   §   1021. 

Commissioners',   at  foreclosure  sale,   §   Tlfi. 

Elisor's,  for  summoning  jurors,  §  228. 

Executor  and  administrator's,   §§  1616,   1618. 

Guardian's,  §  1776. 

Partition  proceedings,  in:     See  Partition. 

Referees  in  probate,  §§  1508,  1636. 

Referees,  §  1021.     See  Referees. 

Trustee's,     on     settlement   of   accounts   after   distribu- 
tion,  §  1700. 
COMPLAINT:   See  Particular  Title;    Pleadings. 

Action  commenced  by  filing,   §  405. 

Action  commenced   when  filed,   §   350. 

Allegations  material,  what  are,  §  463. 

Allegations    material,    not    controverted   deemed  true, 
§  462. 


COMPLAINT. 

Amended,  answer  to,  §  472. 

Amended,  filing  and  service  of,  §  472. 

Amended,  in  partition,  §  761. 

Amended  of  course,  §  472. 

Amendment  of,  §§  472,  473.     See  Amendments, 

Answer   to,    shall   contain   what,    §   437. 

Boats,  in  actions  against,     §§   814,  815. 

Causes  of  action  to  be  separately  stated,  §  427. 

Cloud  on  title,   §  788. 

Condemnation  against   state,   how   served. 

Conditions  precedent,  §  457. 

Contains  what,   §  426. 

Death,  §  385. 

Default  of  defendant,  judgment  cannot  exceed  amount 

demanded,   §   580. 
Defective  heading,  §  1046. 
Demurrer  to,  §§  422,  430,  431. 
Demurrer,  sustaining,  time  to  amend,  §  476. 
Description  of  real  property,  in  ejectment,  §.  455. 
Distribution  proceedings,  in,  §  16G4. 
Ejectment,  in,  description  of  property,   §   455. 
Eminent  domain,   in,   §   1244. 

Fictitious  name,  when  party  may  be  sued  by,  §  474. 
First  pleading  of  plaintiff,  §  425. 
Forcible  entry  and  detainer,  in,  §  1166. 
Forcible  entry  and   detainer,   amendment  of,    §    1173. 
Genuineness  of  instruments,   how   controverted,   §   448. 
Genuineness    of    instruments    in,    when    admitted,    §§ 

447,    448. 
Genuineness  of  instrument,  when  not  admitted,  §  449. 
In  particular  actions:   See  Particular  Title. 
Indorsed,  how,  §  406. 

Joinder,  what  actions  may  be  joined,  §  427. 
Judgment-roll,  as  part  of,  §  670. 
Justices'  courts,  in:     See  Justice's  Court. 
Libel,  how  stated  in,  §  460. 
Liberally  construed,  §  452. 
Lost,  how  supplied,   §   1045. 
Objection  not  appearing  on,  may  be  taken  by  answer, 

§  433. 
Objections,  when  deemed  waived,  §  434. 
Particulars  of  claim,  §  454. 
Partition,  in,  §  753. 
Pleading,  as  a,  §  422. 
Police  court,  in,  §§  929-931. 
Quo  warranto,  in,  requisites,  §  804. 


COMPLAINT— CONFESSION.  W 

Service  of,  with  summons,  §  410. 

Service  of,  copy  to  be  served  on  each  defendant,  §  410. 
Ships,   in  actions  against,   §§   814,   815. 
Signature  to,  §  446. 
Slander,  how  stated  in,  §  460. 
Statement  of  cause  of  action,  how  made,  §  426. 
Statutes  pleaded  how,  §  459. 
Supplemental,   in  partition,   §  761. 
Supplemental,   when  allowed,   §   464. 
VariaiiCfc,  amendment,   §§  469,  470. 
Verification  of,  §  446. 
Verified  in  action  against  ship,  §  815.     « 
What  to  contain,  §  426. 

Written  instruments,   demand   for   inspection,   §   449. 
See    Pleadings;    Justice's   Court. 

COMPOUNDING  by  executor,  §  1588. 

COMPROMISE,  executor,  by,  §  1588. 
Offer  of,  as  evidence,  §§  997,  2078. 
Offer  of,  before  trial  in  justice's  court,  and  its  effect, 

§  S95. 
Offer  of,  how  made  and  its  effect,  §  997. 
Receiver  may,  §  568. 
Without  seal  good,  §  1934. 

COMPUTATION  of  time,  §  12. 

CONCLUSIONS     OF     LAW:   See     Court    Commissioners; 

Findings;   Reference. 
Erroneous,  vacation  of  judgment,   §  663. 

CONCEALED,   property,    possession    of,    how    demanded, 
§   517. 
Defendant,   service,  how  made  on,   §   412. 
Witness,  subpoena,  how  served  on,  §  1988. 

CONCLUSIVE  EVIDENCE:   See  Evidence. 

CONCURRENT   JURISDICTION.     Justices'    and    superior 
courts,   §   113. 
Justices'  and   superior  courts  in  cases  of  forcible  en- 
try, §  1163. 

CONDEMNATION:   See  Eminent  Domain. 

CONDITION  PRECEDENT,  how  pleaded,  §  457. 

CONDUCTOR,  exempt  from  jury  duty,  §  200. 

CONFESSION:   See  Evidence. 
Of  adultery,  divorce,  §  2079. 


828  CONFESSION   OF  JUDGMENT— CONSTRUCTION. 

CONFESSION  OF  JUDGMENT,  conclusiveness  of,  In  con- 
tempt,   §   1222. 
Costs  on  entry  of,   §  1134. 
Entry  of,   §   1134. 
For  contingent  liability,  §  1132. 
For  debt  due,  §  1132. 
In  justice's  court,  §  1135. 

See  Justice's  Court. 
Judgment-roll,   §  1134. 
Statement  of  defendant,  filing,  §  1134. 
Statement  of  defendant,  what  to  contain,  §  1133. 
Statement,  to  be  signed  and  verified,  §  1133. 
What  court  may  enter,  §  1132. 

CONFLICT  OF  LAWS,  attachment,  §  537. 

Injunction  to  stay  proceedings  in  foreign  state,   §  526, 
Interpretation  of  contract,  §  1857. 
Limitation  of  actions,  §  361. 

CONGRESS,  proceedings  of,  how  proved,  §  1918. 

CONSANGUINITY,  appraisers,  as  disqualifying,   §   1444. 
Judge  or  justice,  as  disqualifying,   §  170. 
Juror,  as  disqualifying,   §   602. 
Receiver,  as  disqualifying,  §  566. 
Referee,  as  disqualifying,  §  641. 
See  Affinity. 

CONSIDERATION,  recital  of,  effect  of,  §   1962. 

CONSOLIDATION  of  actions,  §  1048. 

Suits  to  foreclose  mechanics'  liens,  §  1195. 

CONSPIRACY,  declarations  of  conspirator,  §  1870. 

CONSTABLES.     Attorney,   constable   may   not   act  as,   in 

justice's  court,  §  842. 
Limitation  of  action  against,   §   339. 

CONSTITUTION   defined,   §   1897. 
Is  the  organic  law,  §  1897. 

CONSTRUCTION,  code  continuation  of  statutes  and  com- 
mon  law,    §    5. 
Code,  of,  rules  of,  §§  4,  5,  7. 
Code  liberally  construed,  §   4. 

Descriptions  of  land,  rules  for  construing,  §  3077. 
Instruments,  of,    §   1864. 
Instruments:   See  Contracts. 
Phrases,  of,  §  16. 


CONSTRUCTION— CONTEMPT.  823 

Phrases:   See  Words  and  Phrases. 

Pleadings,   liberal,  §  452. 

Statutes  in  derogation  of  common  law,  §  4. 

Technical  words  and  phrases,  of,  §  16. 

Words  of,  §  16. 

Words,  particular,  in  code,  §  17. 

Words,  as  to  tense,  gender,  number,  §  17. 

Words:   See  Words  and  Phrases. 

CONSTRUCTIVE  NOTICE:   See  Notice. 

CONSUL,  affidavit,  may  take,  in  foreign  country,  §  2014. 

CONTEMPT,  acts  amounting  to,  §  1209. 

Appearance,  failure  of  party  to  make,  proceedings, 
§  1220. 

Appearance,  failure  to  make,  prosecuting  undertaking, 
§   1220. 

Arrest,   custody   of   prisoner,    §    1214. 

Arrest  of  witness    is,  §  2068. 

Attachment,   warrant  of,   §   1212. 

Attachment  may  issue,  §  1212. 

Attorney,  assuming  to  be,  §  1209. 

Attorney,  by,  §  1209. 

Attorney   practicing   without  license,   §   281. 

Bail  by  arrested  person,  §  1213. 

Bail  bond,  form  and  conditions  of,  §  1215. 

Commitment  may  issue.  §  1212. 

Committed  in  presence  of  court,  summary  punishment, 
§   1211. 

Committed  not  in  presence  of  court,  affidavit  or  state- 
ment of,  §  1211. 

Committed  not  in  presence  of  court,  attachment  or 
commitment,  §  1212. 

Conclusiveness  of  judgment,  §  1222. 

Confinement,   extent  of,   §    1221. 

Damages,  when  party  fails  to  appear  at  hearing,  §  1220. 

Disobedience  to  order  for  inspection  of  writings,  §  1000. 

Executor  committed  for,  to  be  removed,  §  1721. 

Fine  for,   §  1218. 

Guardian  committed  for,  to  be  removed,  §  1721. 

Hearing,    §    1217. 

Hearing,   proceedings  if  party  fails  to   appear,  §  1220. 


830  CONTEMPT— CONTEST. 

Illness  as  cause  for  nonappearance  of  party  arrested, 

§  1221. 
Imprisonment,    §    1218. 
Imprisonment  until  performance,  §  1219. 
Infertor  tribunal,  by,  §  1209. 
Interpreter,   when   guilty  of,  §  1884. 
Judgment  and  penalty,  §  1218. 
Judgment  in,  final  and  conclusive,  §  1222. 
Juror,   by,   §   1209. 

Justices'  courts,  in,   §§  900-910.     See  Justice's  Court. 
Magistrate,  by,  §  1209. 
Mandamus,  disobeying,  §  1097. 
Nonresidents,  §  1015. 
Notice  to  show  cause,  §  1212. 
Officer,  by,  §  1209. 
Omissions  amounting  to,  §  1209. 
Party,  by,   §   1209. 
Penalty  for,   §  1218. 

Power  of  judicial  offcer  to  punish  for,  §  178. 
Practicing  law  without  license,  §  281. 
Probate  court's  citation,  disobeying,  §§  14G0,  1461. 
Punishment  for,   §   1218. 
Re-entry  after  eviction  is,  effect  of,  §  1210. 
Re-entry   after   eviction   is,   proceedings   on   conviction 

of,   §   1210. 
Return  of  warrant  of  arrest,  and  undertaking,  officer 

must  make,   §   1216. 
Second  application  for  order,  a,  §  183. 
Service  of  process,  §  1016. 
Sheriff   to   arrest   and   detain   person   until   discharged, 

§    1214. 
Subpoena,  disobedience  of,  §  1991. 
Subsequent  applications  for  orders  refused  by  another 

judge,  §   183. 
Supplementary     proceedings,     disobeying     orders     in, 

§  721. 
Warrant  of  attachment,   §  1212. 
What  act  or  omission  is,  §  1209. 
W^hat  constitutes,    §   1209. 
Witness,  by,  §  1209. 
Writings,     disobedience     to     order    for     inspection    of, 

§   1000. 

CONTEST,  probate,  of:    See  Wills,  VIII,  IX. 


CONTINUANCE— CONTRACTS.  831 

CONTINUANCE,   absence   of  evidence,   showing  required, 

§   595. 
Absence  of  attorney,   §   595. 
Absence  of  judge,  proceedings  on,  §  139. 
Absence  of  party,   §   595. 

Absence  of  witness,  aflSdavit,  what  to  state,  §  595. 
Absence  of  witness,  admission  of  testimony,  §  595. 
Affidavit  for,   §   595. 
Attorney,   party   or    witness  attending   on    legislature, 

§    595. 
Contempt  proceedings  in,  §  1217 

Commission  to  take  deposition,   non-return  of,   §  2027. 
Costs  may  be  imposed  as  condition  of,  §  1029. 
Deposition,  non-return  of,  showing  necessary,  §  2027. 
Deposition  of  witnesses,  §  596. 
Election  contest,  continuance  in,  §  1121. 
Forcible  entry  and  detainer,  on  amendment  in,  §  1173. 
Hearing    of   settlement    of   account,    postponement    of, 

§   1C36. 
Jury,  continuance  of  cause  when  jury  required,  §  214. 
Jury,  demand  of,  continuance  of  cause,  §  214. 
Justice's  court,  §§   873-877.     See  Justice's  Court. 
Justice's  court,  continuance  where  amendment  granted, 

§  859. 
Legislature,   attendance   of  attorney,   party   or  witness 

on,   §   595. 
Mandamus  proceedings,  §  1090. 
Order  refusing  deemed  excepted  to,  §  G47. 
Partition,   continuance  in,   for  purpose  of  determining 

respective   claims,   §   774. 

CONTRACTS.     "Agreement"    includes     deeds    and    wills, 

§    1856. 
Arrest,  when  ground  for,  §  479. 
Attachment,  when  ground  for,  §  537. 
Consideration  presumed   in  written  contract,  §  1963. 
Consideration,  recital  of,  effect  of,  §  1962. 
Construction,  circumstances  considered,  §  1860. 
Construction,    construed    in    favor   of    natural    right, 

§  1866. 
Construction  construed  in  whose  favor,   §   1864. 
Construction,    court    confined     to    terms    in    substance, 

§  1858.    • 
Construction,  duty  of  judge,  §  1858. 


CONTRACTS. 

Construction,  effect  to  be  given  to  all  parts,  §  1858. 
Construction,    evidence    that    words    used    in    peculiar 

sense,    §    18G1. 
Construction,   lex  loci  governs,   §  1857. 
Construction  of,  in  general,  §  1858. 
Construction  of  language  relates  to  place  where  used, 

§   1857. 
Construction,   particular  provision   prevails   over   gen- 
eral,  §   1859. 
Construction  of,  question  of  is  for  court,  §  2102. 
Construction,    of    two    constructions,    which    preferred, 

§    1864. 
Construction,   terms   construed   in   general   acceptation, 

§§  18G].  18G5. 
Construction,  written  words  control  printed,  §  18G2. 
Decedent's,  to  convey  land,  §§  1597-1G07. 
Decedent's,  to  purchase  land,  §§  15G5-15C8. 
Execution  of,  defined.  §  1933. 
Joinder  of  actions  arising  out  of,  §  427. 
Joint:   See  Joint  Contracts. 
Lex  loci  governs  construction,  §  1857. 
Limitation  of  action  on  unwritten,  §  339. 
Limitation  of  action  on  written,  §  337. 
Limitation  of  action  on  written,  executed  out  of  state, 

§  339. 
Obligation   arises   from   contract   or  operation  of  iaw, 

§   26. 
Obligation,   definition,   §   26. 
Offer  of  performance,  effect  of,  §  2074. 
Presumption  in  favor  of  consideration,  §  1963. 
Presumption  that  writing  is  truly  dated,  §  1963. 
Recitals  in,  conclusiveness  of,  §  1962. 
Reduced  to  writing  deemed  to  be  the  whole,  §  1856. 
Sealed,  distinction  between,  and  unsealed  instruments 

abolished,    §    1932. 
Sealed,    may    be    discharged   or   changed    by    unsealed 

§  1932. 
Set  out  in  answer,  when  deemed  admitted,  §  448. 
Several  actions  on,  costs  and  disbursements  in  case  of 

§  1023. 
Specific  kind  of  money,  §  667. 
Successive  actions  on,  §  1047. 

Writing  deemed  to  contain,  whole  agreement,  §  1856. 
Written,  merger  of  oral  negotiations,  §  1856. 


CONTRACTOR— CORONKR.  ««:i 

CONTRACTOR,  bond  of,  §  1203. 
Lien  of:   See  Mechanic's  Lien. 

CONTRIBUTION:   See  Sureties. 
Debtors,  among,  §  709. 
Legatees  and  devisees,  among,  §  15C4. 

CONTROVERSY,  submitting  without  action,   §§   1138-1140. 

CONVERSATIONS,    all    admissible    where    part   admitted, 
§  1854. 

CONVERSION,  action  for,  by  executor,  §  1583. 

Of  decedent,  action  for,  against  executor,  §'1584. 

CONVEYANCE:   See  Deeds. 

COPARCENERS.    Any  number  may  sue  or  defend  for  all, 
§§  381.  384. 
Parties  in  suits  concerning,  §§  381,  384. 
Partition:   See  Partition. 

COPY,  amendments,  copies  to  be  served,  §  432. 

Certified,   custcdian   of   public   writing  bound    to   give, 

§  1893. 
Demanding  of  writing,  §  1000. 
Lost  paper,  of,  when  may  be  used,  §  1045. 
Lost  pleading  or  paper,  supplied  by  copy,  §  1045, 
Public  record,  right  to  make  copies,  §  1892. 
Record,  copy  requires  seal,  §   153. 
Secondary  evidence,  copy  is,  §  1830. 
Writing,  demanding  copy  of,  §  1000. 
Writing,    evidence    when   original    accounted    for,   etc., 

§   1855. 
Writing,  pleadings,  effect  of  setting  forth  in,   §§  447- 

449. 

CORONER,  limitation  of  action  against,  §  339. 

Powers  and  duties  of,  prescribed  by  Political  and  Penal 

Codes,  §  262. 
Public  administrator,   act  requiring  coroner  to  act  as 

in  certain  cases,  p.  781. 

Code   Civil  Proc.— 63. 


834  CORPORATION. 

CORPORATION,  attachment  of  stock,  §§   541,  542. 

Change  of  name,  procedure  on,  §  1276. 

Change    of    name,    certificate    of    secretary   of    state, 
§  1278. 

Dissolved  how,  §  1227. 

Dissolution,  appeal,  §  1233. 

Dissolution,   application   for,  filing,   §  1230. 

Dissolution,    application   for,   hearing,   §   1232. 

Dissolution,   application   for,   how   signed   and  verified, 
§    1229. 

Dissolution,   application    for,   to   be   written,   §    1228. 

Dissolution,  application  for,  to  contain  what,  §  1228. 

Dissolution,  judgment-roll,  §  1233. 

Dissolution,  objection  to,  §  1231. 

Dissolution,  publication  or  posting  of  notice,  §  1230. 

Dissolution,  where  applicant  is  savings  and  loan  asso- 
ciation, §  1234. 

Examination    of   witness,    entitled   to    be      present    at, 
§  2043. 

Execution,  stocks,  etc.,  subject  to,  §  G88. 

Executor,  guardian,  etc.,  as,  §  1348. 

Executor,  guardian,  trustee,  etc.,  power  to  act  as,  pp. 
768  et  seq.,  Stats. 

Foreign,  security  for  costs,  §  1036. 

Foreign,  publication  of  summons,  §§  412,  413. 

Foreign,  service  of  summons  on,  §  411. 

Injunction  to  suspend  business  of,  §  531. 

Juror,  officer  as,  §  602. 

Limitation     of     actions     against   •directors    and    stock- 
holders, §  359. 

Limitations  of  action  to  recover  stock  sold  for  delin- 
quent assessment,  §  341. 

Quo  warranto,  §  803. 

Receiver  for,  §  564. 

Receiver  upon  dissolution  of,  §§  564,  565. 

Savings  and  loan  association,  dissolution  of,  §  1234 

Stock,  attachment  of,  §§  541,  542. 

Stock  and  interests  in,  subject  to  execution,  §  688. 

Summons,  service  on,  §  411. 

Summons,  publication,   §§   412,  413. 

Surety    corporation,    duty    of   insurance    commissioner 
p.  762,  Stats. 

Surety  or  guarantor,  as,  §§  1056,  1057. 


CORPORATION— COSTS.  835 

Surety,   when   may   act  as  sole   surety   and   when  not, 

pp.   7G2,   7C3,   Stats. 
Usurpation  of  franchise  by,  action  against,  §  803. 
Verification  of  pleading  by  ofSeer  of,  §  446. 

CORROBORATIVE    EVIDENCE,  defined,  §  1839. 

COSTS,  affidavit  of,   §   1033. 

Agreed  case,  costs  prior  to  trial  not  allowed,  §  1139. 

Amendment  for  variance,  costs  on,  §§  4G9,  470. 

Amendment  of  pleading  of  course,  without,  §  472. 

Amendment,    imposition    of    terms    on    allowance     of, 
§  473. 

Amendment,   in   complaint   in   forcible   entry,   not   im- 
posed, §  1173. 

Answer,  after  time,  imposition  of  terms,  §  473. 

Answer,  imposing  costs,  on  allowance  of,  §  472. 

Appeal,  of,    discretionary    with    court    in    what    cases, 
§  1027.  ' 

Appeal,  on,  execution  therefor,  §  1034. 

Appeal,  on,  how  claimed  and  recovered,  §  1034. 

Appeal,  on,  memorandum,  of  filing  and  service,  §  1034. 

Appeal  to  superior  court,  on,  §  980. 

Apportionm.ent  of,  §  1025. 

Attachment,  on  refusal  to  give  memorandum,  §  546. 

Attorney's  fees,  on  suit  by  executor  on  claim  against 
estate,   §   1510. 

Attorney's  fee,  in  action  on  bond  in  condemnation  pro- 
ceeding, §  1251. 

Attorney's   fees,   in   foreclosure,    §    726. 
Attorney's  fee,  in  foreclosure  of  mechanic's  lien,  §  1195. 

Attorney's  fees,   in  injunction   suits,   §   532. 

Attorney's  fees,  in  partition,  §§  796,  798. 

Bill  of,  filing  and  serving,  §  1033. 

Bill  of,  motion  to  tax,  §  1033. 

Bill  of,  notice  of  motion  to  tax,  time  to  file,  §  1033. 

Compromise,  costs  when  offer  of  rejected,  §§  895,  997. 

Confession  of  jud-gment,  costs  on,  §  1134. 

Confession  of  judgment  in  justice's  court,  on,  §  1135. 

Continuance,  on,  §  1029. 

County,  against,  §  1039. 

Decedent's  estate,  by  whom  to  be  pard,  §  1720. 

Decedent's  estates,  costs  of  partial  distribution,  §  1661. 

Decedent's  estate,  costs  of  final  distribution,  §  1664. 


COSTS. 

Decedent's  estate,  costs  on  suit  by  executor  against, 
§  1510. 

Decedent's  estate,  execution  for,  §  1720. 

Decedent's  estate,  proceedings  for  partial  distrilyution 
paid    by   applicant,    §    1G63. 

Default  judgment  includes,  §  585. 

Deposition  out  of  state  on  oral  interrogatories,  fees 
and  mileage  of  party,  §§  2025^^. 

Discretion  of  court,  allowed  in,  when,  §  1025. 

Election  contest,  of,  §  1125. 

Eminent  domain,  in,  §  1255. 

Escheat  proceedings,  in,  §  1271. 

Estates  of  decedents,  §  1031. 

Execution  purchaser  refusing  to  comply  with  bid,  lia- 
bility  for,   §   695. 

Executors,  actions  by  and  against,  §  1031. 

Executor,  liability  of,  for,  §  1509. 

Fees  of  referee,  amount  of,  §  1028. 

Fees  of  what  oflBcers  included  in,  §  1021. 

Forcible  entry  and  detainer,  in,  §  1174. 

Foreclosure  suit,  in,  §  726. 

Frivolous  appeal,  on,  §§  957,  980. 

Garnishee,  refusing  to  give  memorandum  of  credits 
subject  to,  §  546. 

Guardian,  sale  by,  costs  of,  §  1786. 

Homestead,  costs  of  setting  apart  chargeable  to  es- 
tate, §  1485. 

Judgment,  costs  to  be  included  in,  §  1035. 

Judgment,  relief  from,  imposition  of  terms,  §  473. 

Justice's  court,  in,  included  in  judgment,   §  896. 

Justice's  court,  in,  on  amendment  of  pleadings,  §  859. 

Justice's  courts,  in,  prevailing  party  entitled  to,  §  924. 

Justice's  court,  in,  where*  offer  of  compromise,  §  895. 

Justice's  court,  fees  in,  §§  91,  896,  924.  See  Justice's 
Court. 

Libel  or  slander,  bond  for  costs  in  actions  for,  p.  778, 
Stats. 

Mandamus,  in,  §  1095. 

Mechanic's  lien,  in  action  involving,  §§  1193,  1195. 

New  trial,  defendant  in  eminent  domain  to  pay  where 
he  recovers  less,  §  1254. 

Nonsuit,  on,  §  581. 

Of  course  to  defendant,  in  what  cases,  §  1024. 


Of  course  to  plaintiff,  in  what  cases  §  1022. 

Partial  distribution  of  decedent's  estate,  of,  §  1661. 

Partition,  in,  §§  768,  769,  771,  796,  799. 

Partition,  of,  a  lien  on  shares  of  parceners,  §  796. 

Poor  litigants,  waiver  of  fees,   §  91. 

Postponement  of  trial,  on,  §  1029. 

Probate  court,  in,  bj'  whom  to  be  paid,  §  1720. 

Probate  homesteads,   §  1483. 

Probate  of  will,  costs  of  contest  after,  §  1332. 

Quiet  title,  in  action  to,  §  739. 

Quo  warranto,  in,  §  809. 

Referee's  fees,    §§   768,   1028,   1508. 

Refusal  to  accept  part  of  claim,  costs  not  recoverable, 
when,  §  1503. 

Remittitur,  filing  costs  after,  §  1034. 

Review,  other  than  by  appeal,  on,  §  1032. 

Security  for,   in  justices'  courts,  §  923. 

Security  not  given  for,  action  dismissed,  §  1037. 

Security  required  of  nonresident  or  foreign  corpora- 
tion in  special  proceedings,   §   1036. 

Security,  when  plaintiff  nonresident  or  foreign  cor- 
poration,  §  1036. 

Separate  defenses,  costs  in  case  of,  §  1026. 

Several  actions  brought  on  single  cause,  carry  costs 
in  but  one,  §  1023. 

Several  defendants  not  united  in  interest,  costs, 
§  1026. 

Sham  answer,  costs  on  striking  out,  §  453. 

Shorthand  reporter,  fees  of,  §  271. 

State,  against,  §  1038. 

State,  awarded  against,  §  1038. 

Tender,  how  affects,  §  1030. 

Three  hundred  dollars,  not  allowed  when  recovery 
less  than,  §   1025. 

Transfer  of  action  to  another  court,  for,  §  399. 

Trustees,  in  actions  by  and  against,  §  1031. 

Undertaking,  additional,  when  plaintiff  nonresident, 
§  1036. 

Undertaking,  when  plaintiff  nonresident  or  foreign 
corporation,  §  1036. 

Verification  of  memorandum  of  costs,  §   1033. 

Wages,  in  disputed  claim  for,  §  1207. 

What  included  under,   §   1021. 

When  allowed  in  discretion  of  court,  §  1025, 

When  tender  made  before  suit,  §  1030. 


83S  COTEN  ANTS— COUNTY. 

COTENANTS.     Any   number   may   sue   or   defend   for  all, 

§§  381,  384. 
Parties,  claimants  under  common  source  of  title  may 

unite,  §  381. 
Parties  in  suits  concerning,  §§  381,  384. 
Partition,  may  sue  for,  §  752. 
Partition   and     distribution    of    estates    of    decedents, 

§§   1675,  1676. 
Partition,   §§  752-801.     See  Partition. 
Waste,  liability  for,  §  732. 

COUNSEL:   See  Attorney. 

COUNTERCLAIM,  answer  may  contain  several,  §  441. 

Answer  to  contain,  §  437. 

Assignment  does  not  bar,  §  440. 

Basis  for,  what  is,  §  438. 

Controverted,  allegations  are  deemed,  when,   §   462. 

Cross-demand,  when  deemed  compensated,  §  440. 

Death  does  not  bar,  §  440. 

Demurrer  to,  §§  443,  444. 

Dismissal  in  case  of,  §  581. 

Judgment  when  counterclaim  exceeds  plaintiff's  de- 
mand, §  606. 

Judgment  where  affirmative   relief  demanded,    §   666. 

Jury  must  find  amount  of  recovery,  when,  §  626. 

Justice's  court,  in,  §§  855,  856,  886.  See  Justice's 
Court. 

Mechanic's  lien,   §  1184. 

Misjoinder,  demurrer  for,   §   444. 

Must  arise  out  of  what  transaction  or  obligation,  §  438. 

Omission  to  set  up,  effect  of,  §§  439,  856. 

Separately  stated,  must  be,  §  441. 

Transaction  which  must  raise  out  of,  §  438. 

Verdict  in  action  where  set  up,  requisites  of,  §  626. 

When  to  be  set  up,  §  438. 

COUNTY,  actions  affecting,  where  brought,  §  394. 

Actions  affecting,  transfer  of,  to  another  county,  §  394. 

Bond,  need  not  give  in  action,  §  1058. 

Change  in  boundary,  succession  of  justice,  §  107. 

Complaint  must  show  where  filed,   §   426. 

Costs  against,  how  paid,  §  1039. 

Includes  city  and  county,   §  17. 

Injunction  by,  undertaking  not  required,   §  529. 

Limitation  on  actions  rejected  by  supervisors,   §  342. 


COUNTY— COURT    COMMISSIONER.  839 

New  execution  of  process  in  case  of,  p.  780,  Stats. 

New,  justice  has  authority  of  predecessor,   §   916. 

OfiBcers  of,  exempt  from  jury  duty,  §  200. 

Service  of  summons  on,  §  411. 

Summons  must  state  where  complaint  filed,  §  407. 

Venue,   action  brought  in    wrong    county,    change    of 

§  396. 
Venue,  action  brought  in  wrong  county,  trial  of,  §  396. 
Verification  of  pleadings  by,  §  446. 

COUNTY   CLERK,   certified   list   of  jurors,   to   be   placed 
with,  §  208. 
Disqualification  to  practice  law,   §   171. 
Duty  of,  as  to  list  of  jurors,  §  209. 
Investment  in  name  of,  of  proceeds  in  partition  sale, 
§  789. 

See  Clerk. 

COUNTY  COURT.     Transfer  of  books,  records  and  actions 
to  superior  court,  §  79. 

COUNTY  TREASURER,  deposit  in  court  must  be  paid  to, 
§  573. 

COURSE  OF   PROCEEDING  when  code  does  not  specifi- 
cally provide  for,  §  187. 

COURT  COMMISSIONER,  appointment,  §  258. 
Compensation  of,  §§  259,  729. 
Death  of,  elisor  to  execute  deed,  §  726. 
Examination     of    candidates    for    admission    to     bar, 

§  276. 
Fees  of,  §§  259,  729. 
Findings,  exceptions  to,  §  645. 
Foreclosure,   §  726. 
May  not  grant  injunction,  §  259. 
Not  to  have  partner  practice  law,  §  172. 
Number  of,   §  258. 
Oath  of,  on  foreclosure,   §  729. 
Powers   of,   §    259. 
Powers  of,  limitation  on,  §  259. 
Qualifications,  §  258. 
Reference  to,   report  to  be  made   within  twenty   days, 

§  643. 
Reference  to,   §§   638-641.     Soe  Reference. 
Report  of  conclusions,   §  259. 


MO  COURT   COMMISSIONER— COURTS. 

Report  of  conclusions,  exception  to,  §  259. 
Report,   findings  of  fact  and  conclusion  of  law,   sepa- 
rately stated,   §   643. 
Review  of  finding,  §§  259,  645. 
Sale,  report  of,  §  729. 
Sale  under  foreclosure,  fees  on,  §  729. 
Seal   of,  §   259. 
Undertaking  of,  on  foreclosure,  §  729. 

COURTS,  abbreviations,  use  of,  §  186. 

Absence  of  judge,   proceedings  in  case  of,  §  139. 

Adjournment  for  absence  of  judge,  §  139. 

Adjournment   for   holidays,    §   135. 

Adjournment  of,  in  election  contest,   §   112L 

Adjournment  of,  while  jury  out,  §   617. 

Calendar,    §    593.     See   Calendar. 

Chambers,  powers  at:     See  Chambers. 

Change  in  place  of  holding,  §§  142-144. 

Change  in  place  of  holding,  parties  must  appear,  §  143. 

Change   in   place  of   holding,   when   judge   may   order, 

§    142. 
City,  abolition  of,  p.  763,  Stats. 
City,  transfer  of  books,  papers,  etc.,  to  justice,  p.  763, 

Stats. 
Classification  of,   §  33. 

Costs  on  review,  other  than  by  appeal,  §  1032. 
Days  on   which,   may   be  held,   §   133. 
Days  on  which,  may  not  be  open,  §  134. 
Decision  of,  facts  found  and  conclusions  of  law  must 

be   stated   separately,    §    633. 
Decision  of,  on  question  of  fact,  filing,  §  632. 
Decision   of,   on   question    of    fact    must    be    written. 

§   632. 
Decision,  time  for  giving,  §  632. 
Duties  and  powers  incident  to,   §§  128-130. 
English,  proceedings  to  be  in,  §  185. 
Enumeration  of  courts  of  justice,   §  33. 
Figures,  use  of,   §  186. 
Holidays,   courts  not  open,   except   for  what  purposes, 

§  134. 
Holidays,  holding  court  on  day  following,  §   135. 
Issues  triable  by,  §§   591,  592. 
Judicial  days,  §  133-135. 

Judicial  remedies  defined   and   classified,   §§   20,  21. 
Jurisdiction,  means  to  carry  into  effect,  §  187. 


COURTS-CREDITORS.  841 

Motions  refused  for  informality,  second  application, 
§  182. 

Nonjudicial    days,    §    134. 

Nonjudicial   days,  appointments  on,   §  135. 

Oaths,  power  to  administer,  §  128. 

Officers  of,  powers  and  duties  prescribed  by  Political 
and  Penal  Ck)des,  §  262. 

Order,  refusal  of,  second  application,  §  182. 

Place  of  holding,  provisions  respecting,  §§  142-144. 

Police  court,  provided  for  in  Political  Code,  §  121. 

Power  of,  to  which  an  action  is  transferred,  §  399. 

Power  to  amend  and  control  process,  §  128. 

Power  to  compel  attendance  of  witnesses,  §  128. 

Power  to  compel  obedience  to  judgments,  orders,  pro- 
cess,  §   128. 

Power  to  control  ministerial  officers,  §  128. 

Power  to  enforce  order,  §  128. 

Powers  and  duties  incident  to,  §§  128-130. 

Presumption  that  court  acts  within  jurisdiction,  §  19G3. 

Probate:   See    Probate    Court. 

Process,  power  to  amend  and  control,  §  128. 

Publicity  of  proceedings,  §§  124,  125. 

Questions  of  law,  addressed  to,  §  2102. 

Record,  courts  of,  what  are,  §  34. 

Reporter,  §§  268-274.     See  Phonographic  Reporter. 

Rooms,  directing  sheriff  to  provide  suitable,  §  144. 

Rooms,  suitable,  provided  by  sheriff,  expense,  how 
payable,    §    144. 

Rules,  power  of  court  of  record  to  make,  §  129. 

Rules,  take  effect  when,  §  130. 

Seal  of,  supervisors,  failure  to  provide,  order  on  sheriff, 
§  151. 

Seal  of,  supervisors  to  provide,  §  151. 

Seals  of:   See  Seals. 

Seals,  what  courts  shall  have,  §  147. 

Sittings,  public,  §  124. 

Sittings,   when  private,   §  125. 

Subsequent  applications  for  orders  refused,  contempt, 
§  182. 

Subsequent  applications  for  orders  refused,  when  pro- 
hibited, §   182. 

Superior:   See  Superior  Court. 

Supreme:   See  Supreme  Court. 

Vacancy,  proceedings  not  affected  by,  §  184. 

"What  are  the  courts  of  justice,  §  33. 

CREDITORS:    See  Debtors. 

Administrator,  when  may  be  appointed  as,  §  1365. 


S42  CREDITORS— CROSS-DEMAND. 

Cannot  sue  special  administrator,  §   1415. 
Claim  not  included  in  order,  how  disposed  of,  §  1G50. 
Defrauding,  arrest,  §  479. 

May  apply  for  order  of  sale  of  estate,  §  1545. 
May  require  suits  brought  to  recover  property  of  es- 
tate, §  1590. 
May  except  to  administrator's  account,   §   1625. 
May  assent  to  deduction  on  contingent  claim,  §  1648. 
May  have  execution  issued  upon  judgment,  §  1649. 
Proceedings  of,  on  presentation  of  chiim,  §§  1494-1504. 
To  present  claims  against  estate,  time  when,  §  1493. 
When  entitled  to  administer,  §  1365. 

CRIME,  conviction  of  as  ground  for  removal  of  attorney, 
§    287. 

CRIMINAL   ACTION:   See  Actions. 

Holidays,  court  may  exercise  powers  of  magistrate  on, 

§   334. 
Limitation  of  action  on  undertaking  given  in,  §  340. 
Penal  Code  provides  for,  §  31. 

CRIMINAL    CONVERSATION,    sitting    of    court,    private, 
§  125. 

CRIMINAL    LAW.     Dying    declarations,    admissibility    of, 

§   1870. 
Guilt  to  be  proved  beyond  reasonable  doubt,  §  2061. 
Intent  unlawful,  presumed  from  unlawful  act,  §  1963. 
Juvenile   court,   §   131. 
Jury,  manner  of  impaneling,  §  251. 
Penal  Code  provides  for  prosecution  of  criminal  action, 

§  21. 
Perjury,  number  of  witnesses  necessary,  §  1844. 
Presumption  of  innocence,  §  1963. 
Probationary  treatment  of  juvenile  offenders,  §  131. 
Treason,  number  of  witnesses  necessary,  §  1844. 

CROSS-COMPLAINT,  answer  to,  §  442. 
Demurrer  to,  §  442. 
Necessary  parties,  to  bring  in,  §  389. 
Service  o^',   §  442. 
When   proper,   §   442. 

CROSS-DEMAND,  assignment  does  not  bar,  §  440. 
Death  of  party  does  not  affect,  §  440. 


CROSS-EXAMINATION— DAMAGES.  843 

Omission  to  set  up,  fatal,   §  439. 
When  deemed  compensated,  §  440. 

CROSS-EXAMINATION,  §§  2045,  2048.     See  Witnesses. 

CROSSINGS,  railroad,  how  to  be  made,  §  1240. 
Railroad,  separation  of  grades,  §  1240. 

CRUELTY  TO  ANIMALS,  lien  arising  from  acts  done  to 
prevent,  how  enforced,   §  1208. 
Lien  arising  from  acts  to  prevent,  sale  and  disposition 
of  proceeds,  §  1208. 

CUMULATIVE    EVIDENCE,    defined,    §    1838. 

CURRENCY,  recovering  specific,  §  667. 

CUSTODY,  abstract  of  title  in  partition,  custody  of,  §  799. 
Custodian  of  writing  to  give  copies,  §  1893. 
Will,  custodian  of,  must  produce,  §§  1298,  1302. 

CUSTOM,  local,  governs  actions  concerning  mining  claims, 

§  748. 
Usage,  evidence  of,  §  1870. 

DAMAGES,  amount,  stating  in  complaint,  §  426. 

Appeal,  damages  for  delay,  §§   957,  980. 

Complaint,  stating  amount  in,  §  426. 

Contempt,  liability  of  party  failing  to  appear  at  hear- 
ing for,  §  1220. 

Death,  failure  to  give  notice  of  to  public  administrator, 

§   1728. 
Death  of  human  being  for,  §  377. 

Default,  on  judgment  by,   §  585. 

Double,  respecting  estates  of  decedents,  §§  1460,  1572. 
Double,  in  fraudulent  sale  by  executor,  §  1572. 

Eminent    domain,    in,    §§    1248-1254.     See     Eminent   Do- 
main. 

Eminent  domain,  in,  assessment  of,  §  1248. 
Excessive,  as  ground  for  new  trial,  §  657. 

Exemplary,  unmarried   female  may  recover,  for  seduc- 
tion,  §   374. 

Forcible  entry,  treble  damages  in,  §§  735,  1174. 

Improvement,  setting  off  value  of,  §  741. 

Injunction     respecting     waters,     vacated     or    modified, 
when,  §  532. 


844  DAMAGES— DEATH. 

Joinder  of  claims  for,  §  427. 
Jury,    when   to   be   assessed   by    on    failure   to   answer, 

§   585. 
Libel,  §  4G1. 

Mandamus  proceedings,  in,  §  1095. 
Misconduct  in  probate  sale,  §§  1571,  1572. 
Must  be  claimed  in  complaint,  §  426. 
Neglect,    damages    for   death   caused   by,   limitation   of, 

§   239. 
Nuisance,  for,  §  731. 
Realty,   for  injury   to,   after  execution  sale  and   before 

delivery,   §   746. 
Replevin,  in,  for  detention,  §   667. 
Revocation  of  submission,  damages  for,  §  1290. 
Seduction,   for.  §  374. 
Slander,   §   461. 

Subpoena,   for   disobeying,   §   1992. 
Treble,  for  waste,  trespass,  etc.,  §§  732-735. 
Trespass,   in,   §   733. 
Usurpation  of  office,  for,  §  807. 
Waste,  for,   §   732. 
Will,  failure  of  custodian  of  to  produce  it,  liability  for, 

§  1298. 
Wrongful  arrest  of  witness,  §  2068. 
Wrongful  death,  for.  §  377. 

DATE,  presumption  as  to,  §  1963. 

Presumption  that  writing  is  truly  dated,  §  1963. 

DAYS,  holidays:    See  Holidays. 
Judicial,  §§  133-135. 

DEATH,  abatement  of  action  by,  §  385. 

Action  for,   §§  376,  377.     See  Wrongful   Death. 

Adverse  possession,  effect  of  death  on,  §  327. 

Attorney,  of,  notice,  §  286. 

Bail  exonerated  by  death  of  defendant,  §  491. 

Child,  death  of  pending  administration,  proceedings  on, 

§   1665. 
Court   commissioner,   appointment  of  elisor   to   execute 

deed,   §   726. 
Cross-demand,  not  barred  by,  §  440. 
Damages   for,    §    377. 

Declarations  of  decedent,  §  1870.     See  Evidence. 
Declarations  of  decedent,  relating  to,  §  1870. 
Deposition   may   be   read   in   case  of   death   of  witness, 

§   2032. 


DEATH— DECISION.  8« 

Elisor,  appointment  to  execute  deed  on  death  of  com- 
missioner, §  726. 

Execution  after,   §   686. 

Executor,  proceedings  on  death  of,  §  1353. 

Heirs  may  sue  for,  §  377. 

Infant,  who  may  sue  for  and  who  liable,  §  376. 

Judgment   after,   §   669. 

Limitation,  effect  of,  §§  327,  353,  355. 

Limitation  of  action  for,  §  340. 

Negligence,  child,  death  caused  by,  who  may  sue, 
§   376. 

Negli-gence,  caused  by,  who  may  sue  for,  §  377. 

Partition  not  affected  by,  §  766. 

Party,  of,  effect  on  action,  §  385. 

Possession,  right  of,  not  affected  by,  §  327. 

Presumed   after  seven   years,   §   1963. 

Public  administrator  to  be  notified  of,  §  1728. 

Representative   may   sue   for,   §   377. 

Setoff  not  affected,  §  440. 

Survivorship,  presumption  as  to,  §  1963. 

Wages  a  preferred  claim  in  case  of,   §  1205. 

Who  may  be  sued  for,  §§  376,  377. 

DEBTOR.     Arrest:   See  Arrest  and  Bail. 
Attachment:   See  Attachments. 
Execution:   See  Executions. 

Supplementary  proceedings:  See  Supplementary  Pro- 
ceedings. 

DEBTS.     See   Attachments;     Executions;     Estates   of  De- 
cedents;   Supplementary    Proceedings. 
Attachment  of,  §§  541,  542. 
Compromise  of,  good  without  seal,  §  1934. 
Compromise:    See   Compromise. 
Contribution  among  debtors,   §   709. 
Executions,  seizure  on,   §   688. 
Receiver  may  collect,  §  568. 
Ward's,  how  paid,  §  1768. 

DECEIT,  of  court,   a  contempt,   §   1200. 

DECISION    deemed   excepted   to,   §    647. 
Demurrer,  on,  notice  of,  §  476. 
Exception  to  when  to  be  taken,  §  646. 
Facts  and   conclusions  separately  stated,   §   633. 
Meaning  of,  §  1033. 
Must  be  filed  within  thirty  days,  §  632. 


846  DECISION— DEFAULT. 

Must  be  in  writing,  §  632. 

On  motion  for  new  trial,  §  660. 

On  motion  to  modify  award,  right  of  appeal,  §  1289. 

When  subject  to  review  on  appeal,  §  956. 
DECISION  OF  REFEREE,  findings  of  fact  and  law  must  be 

separately  stated,   §  643. 
DECLARATION:   See  Evidence. 

Oath  includes,  §  17. 
DECLARATION  OF  INTENTION,  attorney,  alien,  §  275. 
DEDICATION,  presumption  of  dedication  of  burial  ground, 

§   19G3. 
DEEDS,  "agreement"  includes,  §  1S56. 

Conveyance  of  estate  of  decedent,  §  1555. 

Description  of  land,  rules  for  construing,  §  2077. 

Execution  of,  defined,  §  1933. 

Mortgage  not  deemed,  §  744. 

Sheriff's,   §§   703,   1271.     See  Sheriff's  Deed. 

Sheriff's,  to  escheated  estate,  §  1271. 
DEFAULT,   against  ijonresident,   §    585. 

Cannot  exceed  amount  demanded,  §  580. 

Damages,  assessment  of,  on,  §  5S5. 

Entry   of,   §   585. 

Entry  of  judgment  on,   §   585. 

Examination  of  plaintiff  or  agent,  §  585. 

For  failure  to  answer,  §  585. 

For  failure  to  answer  amended  complaint,  §§  432,  872. 

Includes   costs,   §    585. 

In   forcible    entry   and    detainer,    §    1169. 

In  justice's  court,  §§  871,  872. 

In   justice's   court,   relief   from,   for   mistake,    surprise, 
neglect,  §  859. 

Judgment  by,  cannot  exceed  amount  demanded,  §  580. 

Judgment  by,  relief  from  in  justice's  court,  §  859. 

Judgment-roll  in  case  of,  §  670. 

Justice's   court,   in,   §§   871,   872. 

Justice's   court,    §§    859,    871,   872.     See  Justice's   Court. 

Mandamus  not  granted  by,  §  1088. 

Nonresident,  default  judgment  against,  §  585. 

Procedure,  §  585. 

Procedure  where  service  by  publication,  §  585. 

Quieting    title    against    unknown    owners,    default    not 
entered,  §   751. 

Quiet   title,    costs,    where   defendant   does   not   answer, 
§  739. 

Reference,  when  may  be  ordered,  §  585. 


UEn-AULT— DEFINITION.  847 

Relief  from  judgment  by,  §  473. 
What  relief  awarded  plaintiff,  §  580. 
When  entered,  §  585. 
When  summons  by  publication,  §  585. 

DEFECT  of  parties,  ground  for  demurrer,  §  430. 

In  account,  further  account  may  be  ordered,  §  454. 
In   pleadings,   when  disregarded,    §   475. 

DEFENDANT:   See   Parties. 
Pleadings  of,  §  422. 

Summons      where      defendants     reside     in       different 
counties,  §  406. 

DEFENSE:   See  Answer. 

Assignment  not  to  prejudice,  §  368. 
Must  be  separately  stated,  §  441. 
Order  of  at  trial,  §  G07. 
Particular  actions:    See  Particular  Title. 
Several  may  be  stated  in  answer,  §  441. 
Written  instrument,  founded  on,  §  448. 

DEFICIENCY  JUDGMENT,  §  726. 

Foreclosure  of  mortgage  on  decedent's  estate,   §   1578. 
Undertaking  to  stay,   §   945. 

DEFINITION,  action,  §  22. 

Affidavit,  §  2003. 

Affinity,  §  17. 

Appellant,  §  17. 

Certiorari,  §  1067. 

Civil  action,  §  30. 

Complaint,  §  853. 

Conclusive  evidence,  §  1837. 

Constitution,   §   1897. 

Corroborative  evidence,  §  1839. 

Cross-examination  of  witness,   §   2045. 

Cumulative  evidence,  §     1838. 

Decision   of  court  or  referee,   §   1033. 

Defendant,  §§  308,  1063. 

Depose,  §  17. 

Deposition,  §  2004. 

Direct   evidence,    1831. 

Direct  examination  of  witness,   §  2045. 

Eminent  domain,  §  1237. 

Evidence,  §  1823. 


DEFINITION. 

Exception,  §  646. 

Execution  of  instrument.  §  1933. 

Forcible   detainer,   §   1160. 

Forcible  entry,  §  1159, 

General  verdict,  §  624. 

Grand  jury,  §  192. 

Incapable,  §  1767. 

Incompetent,  §  1767. 

Indirect  evidence,  §  1832. 

Indispensable,  §  1836. 

Inference,   §   1958. 

Injunction,    §    525. 

Injury  to  person,  §  29. 

Injury  to  property,  §  28. 

Issue,  §  588. 

Judgment,  §  577. 

Judgment  in  special  proceedings,  §  1064. 

Judicial  record,  §  1904. 

Judicial  remedies,  §  20. 

Jury,  §  190. 

Jury  of  inquest,  §  195. 

Law,   §§  1895-1899. 

Law  of  evidence,  §  1825. 

Leading  questions,  §  2046. 

Liens,  §  1180. 

Mandamus,  §  1084. 

Material  allegations,  §  463. 

Mentally  incompetent,  §  1767. 

Month,  §  17. 

Motion,  §§  1003,  1064. 

New  trial,  §  656. 

Nuisance,  §  731. 

Obligation,  §  26. 

Occupant,  §  1160. 

Oral   examination  of  witness,  §  2005. 

Order,  §§  1003,  1064. 

Organic  law,  §  1897. 

Partial  evidence,  §  1834. 

Person,  §  17. 

Personal  property,  §  17. 

Plaintiff,  §§  308,  1063. 

Pleadings,  §  420. 


DEFINITION— DEMURKiiK.  84a 

Presumption,    §    1959. 
Prima  facie  evidence,   §   1833. 
Primary  evidence,   §  1829. 
Private  property,   §   1240. 
Private   statutes,   §   1898, 
Private  writing,  §  1889. 
Process,    §    17. 
Prohibition,    §    1102. 
Proof,  §  1824. 
Property,   §   17. 
Public   statutes,    §    1898. 
Public  writings,   §  1888. 
Real  property,  §  17. 
Redemptioner,  §  701. 
Respondent,   §   938. 
Satisfactory   evidence,    §    1835. 
Seal,   §§   14,   1930,   1931. 
Seal,   public,    §   1931. 
Secondary  evidence,  §  1830. 
Section,    §    134. 
Slight  evidence,    §   1835. 
Special   proceedings,    §   23. 
Special  verdict,   §   624. 
State,   §   17. 
Statute,  §§  1897,  1898. 
Statutes,  §  1897. 
Subpoena,   §  1985. 
Subscribing  witness,   §   1935. 
TesUfy,  §  17. 
Trial  jury,   §  193. 
Trustee,   §   369. 
United  States,  §   17. 
Unlawful  detainer,  §  1161. 
Unwritten  laws,  §  1899. 
Verdict,  §  624. 
.Will,  §  17. 
Witness,   §   1878. 
Writ,  §  17. 
Written  law,  §  1896. 

DEMAND,  of  bill  of  particulars,  §  454. 
In  unlawful  detainer,   §   1161. 
Inspection  of  written  instrument,  demand  for,  §  449. 

DEMURRER,  accusation  in  proceeding  to  remove  attorney, 
to,  §  295. 

Code   ClvU   Proc— 64. 


860  DEMURRER— DEPOSB 

Amended  pleading,  to,  §  472. 

Answer,  to,  §§  422,  443. 

Answer,  to,  in  mandamus,  §  1091. 

Answer,  to,  effect  of  overruling,  §  472. 

Answer,  to,  grounds  for,  §  444. 

Answer,  to,  time  for,   §  432. 

Answer  and,  at  same  time,  §  431. 

Answer  to  part  and  demurrer  to  part,  §  441. 

Answer,  to  part  of,  §  443. 

As  a  pleading,  §  422. 

Complaint,  may  be  taken  to  part  of,  §  481. 

Complaint,  to,   must  specify  grounds,   §   431. 

Complaint,  to,  time  for,  §  430. 

Counterclaim,  to,  §§  443,  444. 

Cross-complaint,   to,    §    442. 

Forcible  entry  and  detainer,  in,  §  1170. 

Grounds  for,  §§  430,  431. 

Grounds  of  demurrer  to,  opposition  to  probate,  §  1312. 

Intervention,  to,  §  387. 

Issues  raised  by,   §   589. 

Judgment  on,  proceedings  after,  §  636. 

Judgment-roll,   copy  of  order  on,  is  part  of,   §  670. 

Justice's   court,   in,   §§   854,   856-858,   860.     See   Justice's 

Court. 
Objection  to  complaint  waived,  when,  §  434. 
Order   sustaining   or   overruling    deemed     excepted    to, 

§  647. 
Overruled,  filing  answer,   §  472. 
Overruling   demurrer  to  answer,   facts  alleged   deemed 

denied,   §   472. 
Overruling,    imposition   of   terms   in   allowing   answer, 

§  472. 
Overruling,  time  to  answer,  §  476. 
Sustaining,  time  to  amend,  §  476. 
Time  for,  extending,  §§  473,  1054. 
Time  within  which  may  be  taken  to  answer,  §  443. 
Time  within  which  must  be  taken  to  complaint.  §  430. 
To  what  pleadings  may  be  taken,  §  422. 
Waived,  not  by  filing  answer  at  same  time,  §  472. 
Waiver,  by  failure  to  demur,  §  434. 
W^aiver  of  summons   by,   §   406. 
When  defendant  may  demur,  §  430. 

DENIAL:   See  Answer. 

DEPOSE,  includes  what,  §  17. 


DEPOSIT— DEPOSITION.  »51 

DEPOSIT,  appeal  to  superior  court,  on,  §  978. 

In  lieu  of  bail,   §§  497-500.     See  Arrest  and  Bail. 
In  lieu  of  undertaking,   on   appeal,   §§   940,   941,   948. 
Instead  of  undertaking,  in  justice's  court,  §  926. 

DEPOSIT  IN  COURT:   See  Eminent  Domain. 

Appointment  of  clerk  to  receive,  how  long  continues 
and  revocation  of,  §  2104. 

Appointment  of  clerk  to  receive  to  be  filed  with  treas- 
urer,  §  2104. 

By  one  interpleading,   §  386. 

Condemnation  proceedings,  loss  of,  who  to  bear, 
§  1254. 

Moneys  to  be  delivered  to  clerk  or  deputies,  §  2104. 

Must  be  paid  to  clerk  and  deposited  with  county  treas- 
urer, §§  573,  2104. 

Of  proceeds  of  partition,   §   773. 

Of  surplus  after  foreclosure,  §  727. 

Of  surplus  on  sale  of  boat,  §  825. 

On  appeal,  §§  926,   940,  941,  948. 

Order  for,  how  enforced,  §  574. 

Payment  in    condemnation   proceedings,    §§    1252,    1254. 

Payment  to  county  treasurer,  his  liability  therefor, 
§   573. 

Payment  to  county  treasurer,  how  kept  by  him,  §  573. 

Proceeds  of  sale  of  mortgaged  realty,  §  1569. 

Sheriff  to  deposit  bail  money  in  court,  §  498. 

Treasurer,  duties  of,  §  2104. 

Trustee,  by,  §  572. 

When  court  may  order,  §  572. 

DEPOSITION,  absence  of  witness  to  be  proved  before 
reading  in  evidence,   §   2032. 

Another  state,  to  be  used  in,  how  taken,  §§  2036-2038. 

Application  for  order  to  perpetuate  testimony  as  evi- 
dence, §  2084. 

Before  whom  may  be  taken,   §  2031. 

Commission,  from  justice  court,   certificate,   §   2024. 

Commission,  to  whom  to  issue,  §  2024. 

Commission,  nonreturn  of,  continuance  for,  showing 
necessary,  §  2027. 

Commission,  procuring  deposition  without,   §  2037. 

Court  commissioner  may  take,   §  259. 

Death  of  party,  deposition  may  be  read  in  case  of, 
§  2032. 

Defined,  §  2004. 


85£  DEPOSITION. 

Depose  defined,  §  17. 
Distribution  proceedings,  in,  §  1664. 
Effect   of,   §   2089. 

Either  party  may  talce,  of  witness,  §  2081. 
Excluded  when  taking  was  not  fair,  §  2033. 
How  talcen,  §  2006. 

In  state,  can  not  be  read  if  presence  of  witness  pro- 
curable, §  2021. 
In  state,  manner  of  taking,  §§  2031,  2032. 
In  state,  to  whom  directed  and  delivered,   §  2032. 
In  state,  reading,  subscription  and  certification,  §  2032. 
In  state,  sealing  and  enclosing,  §  2032. 
In  state,  right  to  read,  absence  of  witness,  §  2032. 
In  state,  may  be  used  by  either  party,  §  2032. 
In   state,   using   at   trial,   objections   to   form   of   ques- 
tions,  §  2032. 
In  what  cases  may  be  taken,  §  2021. 
Jurors  on  deliberation  may  not  take  with  them,  §  612. 
Justice  of  peace  may  take,  §  179. 
Justice  of  supreme  court  may  take,  §  179. 
Justice's  court,  postponement  of  trial,  testimony  may 

be  taken  on,  §  876. 
May  be  read  at  any  time,   §   2034. 
Notice,  depositions  are  made  upon,  §  2004. 
Notice  of  taking,  time  of,  §  2031. 
Out  of  state,  in  action,  when  may  be  taken,  §  2020. 
Out  of  state,  in  special  proceeding,  when  may  be  taken, 

§  2020. 
Out  of  state,   on   oral  interrogatories,    commission    to 

take,  §  2025l^. 
Out  of  state,  on  oral  interrogatories,  fees  and  mileage, 

where  not  taken,   §   20251/^. 
Out  of  state,  on  oral  interrogatories,  notice  of  taking, 

§   20251/^. 
Out  of  state,  right  to  use  of,   §  2028. 
Out  of  state,  taking  without  Interrogatories,  §  2025. 
Out  of  state,  commission  to  take,  how  issued,  §  2024. 
Out   of  state,   commission  to    take,   to  whom   directed, 

§    2024. 
Out  of  state,  commissioner's  authority  and  duty,  §  2026. 
Out  of  state,  interrogatories  to  be  annexed,  how  pre- 
sented and  settled,  §  2025. 
Out  of  state,   to  be  used,  how  taken,   §§   2035-2038. 
Perpetuating    testimony,    testimony,    how    perpetuated, 

§  2083. 
Perpetuating  testimony,  petition  to  be  verified,   §  2084. 


DEPOSITION— DESCRIPTION.  853 

Perpetuating  testimony,  authority  of  person  appointed 
to  take   deposition,   §   2085. 

Perpetuating  testimony,   manner  of  taking  deposition, 
§    2086. 

Perpetuating  testimony,   petition  for  order  for,   §   2084. 

Perpetuating  testimony,  notice,  service  of,  §  2084. 

Perpetuating  testimony,  order  for,  §  2084. 

Perpetuating  testimony,  order  and  petition  with  proot 
of  service  to  be  filed,  §  2086. 

Perpetuating  testimony,  petition  and  order  prima  lacie 
evidence,  §  2087. 

Perpetuating  testimony,  effect  of  deposition,  §  2089. 

Perpetuating  testimony,  deposition,  when  may  be  pro- 
duced  in  evidence,   §   2088. 

Police  judge  may  take,  §  179. 

Postponement   of   trial,    deposition   of   witness   on,   ad- 
missible,  §   596. 

Postponement    of   trial,    testimony     may    be   taken    on, 

§§    596,    876. 
Prisoner's,  §§  1995-3997. 

Production  of  deposition  in  evidence,  §  2088. 

Reference   to   take,   in   proceeding  to   remove   attorney, 
§  298. 

Superior  judge  may  take,  §  179. 

Supreme  judge  may  take,  §  179. 

Time  of  taking,  §  2020. 

To  be  used  in  another  state,  how  taken,  §§  2036-2038. 

When  may  be  used,  §§  2019,  2028,  2032,  2034. 

Who  may  take,   §  2031. 

Witnesses',    in   state,   cannot   be   read   if   presence   pro- 
curable, when,   §   2021. 

Witnesses',  in  state,  when  may  be  taken,  §  2021. 

Witnesses  to  will,  depositions  of,  §  1308. 

Witness'   testimony  may  be  taken  on  postponement  of 
trial,   §§   596,  876. 

Written    declarations   under   oath   to   be   by   deposition, 
§  2019. 

DEPUTY  CLERK:   See  Clerk. 

DEPUTY  SHERIFF:    See  Sheriff. 

DESCENT,  right  or  possession  not  affected  by  descent  cast, 
§   327. 

DESCRIPTION.     Rules  for  construing  description  of  land, 
§  2077. 


854  DESCRIPTION— DISCRKTION    OF    COURT. 

Real  property  in  pleading,  §  455. 
Survey,  description  of  property  in  order  for,    §  743. 

DESTROYED  WILLS,  probate  of:      See  Wills,  XI. 

DETINUE,  limitation  of  action  of,  §  338. 

DEVISE:  See  Wills,  III. 

DIRECTOR,  limitation  of  action  against,  §  359. 

DISABILITY,  action  not  abated  by,  §  385. 
Justices',   proceedings   thereon,    §   922. 
Justice's,  reassignment  and  transfer  of  action,  §  90. 
Presiding  justice's,  substitute,  §  85. 
Superior  judge's,  holding  court  by  another,  §  160. 
Statute  of  limitations,  effect  on,  §    328. 
See   Statute   of   Limitations. 

DISBURSEMENTS:   See  Costs. 

DISCHARGE,  of  prisoner  confined  on  civil  process,  §§  1143- 
1151.     See  Prisoner. 
Executor:   See    Executors    and    Administrators,    IV. 

DISCLAIMER,  in  action  to  quiet  title,  §§  738,  739. 

DISCONTINUANCE,  entering,  §  581. 

DISCOUNT  of  claims  against  decedent's  estate,'  §  1648. 

DISCRETION    OF   COURT,   costs  of    appeal,    when  in,    § 

1027. 
Costs  on  postponement  of  trial,  are  in,  §  1029. 
Costs    on    proceedings    for     condemnation    of    land    in 

§  1255. 
Evidence  on  collateral  questions,  admitted  in,  §  1868. 
Expenses  of  referees  in  partition,  §§   768,  796. 
Form  of  administering  oath,  in,  §  2095. 
Granting  stay,   under  writ  of  review  in,  §  1072. 
On   allowance   of  costs,   §    1025. 
Ordering    issues   in    mandate   to    be    tried    by   jury    in. 

§  1090. 
Order  of  proof  in,  §  2042. 
Order  of  trial,   §   607. 
To    order    reference    in     accusation     against    attorney 

§   298. 


DISMISSAL— DOCKET.  K6 

View  by  jury  of  premises,  allov/ed  in,  §  1954. 
DISMISSAL:    See   Appeals;    Judgments. 

Election  contest,  grounds  for,  §§  1117,  1122. 
Failure  to  enter  judgment,  dismissal,  §  581. 
How   made,   §   581. 
In  justices'  courts,  §  890.     See  Justice's  Court. 

Justice  court,  dismissal  of   action   without  prejudice  in, 

§    890. 
Of  action,  grounds  for,  §§  581,  594. 
Security  for  costs,  for  failure  of,  §  1037. 
To  be  entered  in  clerk's  register,  when,  §  581. 
To  be  entered  on  minutes  of  court,  when,  §  581. 

DISQUALIFICATION,  jurors,  of,  §  602. 
Justices  and  judges,  of,  §§  170,  833. 
Of  judge  in  probate  proceedings,  §  1430. 
Refereees,   of,   §   641. 
See    Affinity;    Consanguinity. 

DISSOLUTION:    See  Corporations. 

Of  savings  and  loan  association,  §  1234. 

DISTRIBUTION:   See  Estates  of  Decedents. 

DISTRICT  ATTORNEY,  duty  where  public  administrator 
fails  to  account,  §  1744. 
Nuisance,  to  abate  when  directed  by  supervisors,  §  731. 
Nuisance,  city  attorney  and  district  attorney  have  con- 
current right  to  abate,  §  731. 
Nuisance,   may   sue  to   abate,   §   731. 

DISTRICT  COURT    OF    APPEALS,  attorneys  admitted  to 
supreme  court  may  practice  in,  §  277. 
Examination  of  attorneys  by,  §  276. 

DISTRICT  COURT,  transfer  of  books,  records  and  actions 

to  superior  court,   §   79. 

DISTRICT  OF  COLUMBIA  included  under  state  and  Uni- 
ted  States,   §   17. 

DIVORCE,  confession  of  adultery,  §  2079. 
Jurisdiction  of  proceedings  for,   §  76. 
Sitting  of  court,  private,  §   125. 

DOCKET,  entries  made  how,  §  672. 

Execution  may  issue  on,  of  predecessor,  §  916. 


85G  DOCKET— EJECTME^fT. 

Foreign  justice's,  copy,  evidence,  §§  1921,  1922. 

How  kept,  §  672. 

Inspection,  open  for  public,  §  673. 

Is  what,  §  672. 

Judgment,  how  and  when  entered,  §  671. 

Justices  of  peace,  of,   §§   911-918.     See  Justice's  Court. 

Redemptioner  must  produce,  §  705. 

Satisfaction,  entering,  §   675. 

Transcript  of,  when  filed  in  another  county,  judgment 

becomes  lien  there,  §  674. 
What  to  contain,  §  672. 

DOCUMENT,  proving:   See  Elvidence. 

DOMICILE:  See  Residence. 

DRUGGIST,  exempt  from  jury  duty,  §  200. 

DYING   DECLARATION,  §  1870. 

EASEMENT  may  be  condemned    under    eminent  domain, 
§  1239. 

EJECTMENT,  alienation  pending  suit,  does  not  prejudice, 

§  747. 

Costs  of  course,  when  allowed,  §  1022. 

Description  of  property  in  complaint,  §  455. 

Executor,  suit  by  or  against,  §  1582. 

Improvements  as   setoff,   §   741. 

Joinder  of  causes  of  action  with,  §  427. 

Measurement  of  shafts,  tunnels,  etc.,  on  land,  §  742. 

Mining  claims,  evidence  of  custom  and  usage,  §  748. 

Parties,   §§   380,  381. 

Parties  defendant,  unknown,  claims  of,  how  deter- 
mined, §§  749-751. 

Parties  defendant,  who  may  be  joined  as,  §  379. 

Summons  to  unknown  defendants,  §§  750,  751. 

Survey  of  land,  order  for,  what  to  contain  and  how 
served,    §    743. 

Survey  of  land,  order  may  issue  for,  §  742. 

Survey  of  land  in  dispute,  liability  for  injury  done  by, 
§   743. 

Termination  of  plaintiff's  title  pending  suit,  effect  of, 
§   740. 

Unknown  claimants,  determining  title  of,  §  751. 

Unknown  claimants,  summons  to,  §§  750,  751. 

Verdict  in,   §   625. 

Writ  of  possession,  §  380. 

Writ  of  possession  or  assistance:  See  Assistance. 


ELECTION— ELISOR.  867 

ELECTION,  annulment,  effect  of,  §  1127. 

Contest,  adjournment  of  court,  §  1121. 

Contest,  appeal,  §  1126. 

Contest,  citation  to  respondent,  clerk  to  issue,  §  1119. 

Contest,  citation  to  respondent,  service  of,  §  1119. 

Contest,   continuance   of,   §   1121. 

Contest,  costs,  §  1125. 

Contest,  court  may  declare  who  was  elected,  §  1123. 

Contest,  dismissal,  grounds  for,  §§  1117,  1122. 

Contest,  grounds  for,  §  1111. 

Contest,  judgment  of  court,  §  1122. 

Contest,  powers  of  court,  §  1121. 

Contest,  proceedings  on,  §  1115. 

Contest,  rules  to  govern,  §  1122. 

Contest,  special  session  for  trial  of,  §  1118. 

Contest,  statement  of  cause  based  on  illegal  voting, 
list  of  illegal  votes  to  be  delivered  to  respond- 
ent, §  1116. 

Contest,  statement  of  cause  for,  affidavit,  §  1115. 

Contest,  statement  of  cause,  form  of,  not  to  vitiate, 
§  1117. 

Contest,  statement  to  be  verified,  §  1115. 

Contest,  statement  of  cause,  what  to  contain,  §  1115. 

Contest,  time  to  file,  §  1115. 

Contest,  witnesses,  attendance  of,  how  enforced,  §  1120. 

Contest,  who  may,  §  1111. 

Holi-day,  day  on  which  election  held,  is,  §  10. 

Illegal  votes,  when  not  to  annul,  §  1114. 

Irregularity  and  misconduct  of  judges,  when  not  to 
annul,   §   1113. 

Irregularity  and  misconduct  of  judges  when  to  annul, 
§   1112. 

Justices  of  peace  in  township,  time  of,  §  103. 

Preference  given  to  contested  election  cases  on  appeal, 
§   57. 

Public  officers,  of,  prescribed  by  Political  Code,  §  262. 

Superior  judges,  election  of,  §   65. 

Supreme  judges,  election  of,  §  40. 

Void,  office  vacant,  §  1127. 

Who  may  contest,  §   1111. 

ELECTRIC  COMPANIES,  eminent  domain,  §  1238. 

ELISOR,  appointment  of,  to  execute  deed  on  death  of  court 
commissioner,   §   726. 
Compensation  of,  for  summoning  jurors,  §  228. 
sammoning  jurors  to  complete  panel,  §  227. 


K8  EMBEZZLEMENT— EMINENT     DOMAIN. 

Summoning  jury  forthwith,  §  226. 
To  sell  encumbered  property,  §  726. 

EMBEZZLEMENT:   See  Estate  of  Decedent. 
Administrator,  suspending  for,  §  1436. 
Arrest  for,  §  479. 

Arrest  in  justice's  court  in  case  of,  §  861. 
Ward's  property,  examination  of  person  suspected  of, 
§   1800. 

EMINENT  DOMAIN  action,  how  commenced,  §  1243. 
Action,  where  to  be  brought,  §  1243. 
Annulment  for  failure  to  pay  damages,  §  1252. 
Answer  may  show  what,  §  1246. 
Appeals,  effect  of,  §  1257. 

Appeals,   provisions  relating  to  apply,  §   1257. 
Attorney's  fees  in  action  on  bond  to  build  fences,  etc  , 

§  1251. 
Bond  to  build  fences  and  cattle-guards,  §  1251. 
Cattle-guards  and  fences,  §§  1248,  1251. 
Common   use,   court   may    regulate    mode   of   enjoying, 

§  1247. 
Compensation,   court   to   order   money  deposited   to   be 

delivered  to  defendant,  when,  §  1254. 
Compensation,    defendant,    when    entitled    to     demand, 

§  1254. 
Compensation,  deposit  in  court,  amount  of  and  duty  of 

court,  §  1254. 
Compensation,  deposit  in  court,  county  clerk  liable  to 

plaintiff  for  loss,  §  1254. 
Compensation,   deposit  in  court  is  at  risk  of  plaintiff, 

§  1254. 
Compensation,  deposit  in  court,  plaintiff  to  make  loss 

good,  §  1254. 
Compensation,   deposit  of   money   with  state  treasurer 

and  his  duty,  §  1254. 
Compensation,  payment  to  defendant  an  abandonment 

of   defenses,   when,    §    1254. 
Compensation:    See  Damages,   post. 
Complaint   must  contain  what,   §   1244. 
Condemnation,  estates  and  rights  subject  to,  §  1239. 
Condemnation,  facts  to  be  found  before,  §  1241. 
Conflicting  claims,  court  may  determine,  §  1241. 
Construction  of  statute,  in  general,  §§  1258,  1260,  1263. 
Costs,  §  1255. 

Crossings,  court  may  regulate  mode  of  making,  §  1247. 
Curing  defective  title,  new  proceedings,  §   1250. 


EMINENT    DOMAIN.  86!» 

Damages,  apportionment  of,  §  1248. 

Damages,  assessment,  manner  of,  §  1248. 

Damages,  benefits  to  be  considered  in  the  assessment, 
§   1248. 

Damages,  court  jury,  or  referee  to  assess,  §  1248. 

Damages,  date  with  respect  to  which  shall  be  assessed, 
§  1249. 

Damages,  deposit  for  in  court,  §§  1252,  1254. 

Damages,  deposit  or  bond  for  payment  of,  §  1251. 

Damages,  failure  to  pay  annulment  of  proceedings, 
§  1252. 

Damages,  interest  on,  §  1249. 

Damages,  measure  of,  §  1249. 

Damages,  money  deposited  applied  on,  §  1257. 

Damages,  payment  of,  time  for,  §§  1251,  1254. 

Damages,  to  whom  to  be  paid,  §§  1252,  1254. 

Damages  in  cases  involving  waters,  §  1248. 

Damages  not  to  include  improvements  made  subse- 
quently  to  summons,  §   1249. 

Damages  to  be  assessed  for  each  source  of  injury  sepa- 
rately,  §   1248. 

Defective  title,  new  proceedings  to  cure,  §  1250. 

Defense  against,  who  may  make,  §  1246. 

Defined,  §  1237. 

Easement  may  be  condemned,  §  1239. 

Entry,  right  of,  may  be  condemned,  §  1239. 

Entry  on  land  to  survey,  action  for,  §  1242. 

Estates  subject  to  condemnation,  §  1239. 

Execution  to   recover  damages,   §   1252. 

Fee  simple  may  be  condemned  for  what,  §  1239. 

Fences  and  cattle-guards,  §§  1248-1251,  1257. 

For  what  purposes  may  be  exercised,  §  1238. 

Franchise  may  be  condemned,  §  1240. 

Improvements  made  subsequently  to  summons,  no 
compensation  for,  §  1249. 

Location  of  property,  manner  of,  §  1242. 

Location  of  property,  survey,  §  1242. 

May  be  exercised  on  behalf  of  what  uses,  §  1238. 

Municipality's  land   may  be  condemned,  §  1240. 

New  trial,  effect  of  motion,  §  1257. 

New  trial,  costs,  defendant  to  bear  when  he  recovers 
less,  §  1254. 

New  trial,  provisions  relating  to  apply,  §  1257. 

Order  of  condemnation,  filing,  §   1253. 

Order  of  condemnation,  what  to  contain,  §  1253. 

Parties,  §  1246. 

Pending  proceedings  not  affected  by  code,  §  1261. 


»  EMINENT    DOMAIN— ENGLISH    LANGUAGE. 

Possession,  plaintiff  may  be  authorized  to  take  when, 

§  1254. 
Possession,   putting  plaintiff  in  on  payment  or  giving 

bond  pending  new  trial  or  appeal,  §  1257. 
Power  of  court  to  determine  conflicting  claims,  §  1247. 
Practice,  rules  of,  §§  1256,  1262. 

Preference  of  in  trial   over  other  proceedings,   §  1264. 
Private  property,  what  included  under,  §   1240. 
Private  property  defined,  §  1240. 
Proceedin'gs  to   condemn,   what  facts  must  be  shown, 

§   1241. 
Property  devoted  to  public  use,  what  must  be  shown 

before  condemnation  of,  §  1241. 
Property    devoted   to    public   use   may    be    condemned, 

§  1240. 
Public  property  may  be  condemned,  §  1240. 
Public  uses,  what  are,  §  1238. 
Respective  rights,   court  may  determine,   §   1247. 
Rights  of  way  may  be  used,  §  1240. 
Rights   subject  to  condemnation,    §    1239. 
State  land,  condemnation  proceedings,  how  maintained 

and  conducted,  §  1240. 
State  land,  condemning,  service  of  summons  and  com- 
plaint, §  1240. 
State  lands  may  be  condemned,   §   1240. 
Statute  concerning,  construction  of,  in  general,  §§  1258, 

1260,  1263. 
Statute   does   not   affect   right   of   city   to    take   street, 

1263. 
Statute  takes  effect  when,  §§  1258,  1259. 
Submerged  lands,  §  1240. 
Summons  must  contain  what,   §   1245. 
Summons,  service  of,  §§  1240,  1245. 
Superior   court  of  county  has  jurisdiction  of  proceed- 
ings,  §   1243. 
Time  when  statute  takes  effect,  §§  1258,  1259. 
Title  relating  to,  when  takes   effect,   §   1259. 
Uses,  public,  what  are,  §  1238. 
Vesting  of  title,  §  1253. 
What  property  may  be  taken  under,  §  1240. 
When  may  be  exercised,  §  1238. 
Who  may  defend  against,  §  1246. 

ENGINEER,  exempt  from  jury  duty,  §  20d. 

ENGLISH  LANGUAGE,  proceeding  in  court  to  be  in  Eng- 
lish, §  185. 


ENTRY— ESCHEATED     ESTATE.  861 

ENTRY,  business,  in  course  of,  §  1947. 
Decedent,  by,  §  1946. 

Judgment  failure  to  enter,  dismissal,  §  581. 
Real,  estate,  on,  limitation  of  action,  §§  320,  328. 

EQUITY.     Adverse  claim,  action  to  determine,  §  1050. 

ERROR  in  law  as  ground  for  new  trial,  §  657. 
When  disregarded,  §   475. 

ESCAPE,  assisting,  a  contempt,  §  1209. 
Limitation  of  action  for,  §§  339,  340. 

ESCHEATED    ESTATE,   answer,   §    1271. 

Appearance,   §   1271. 

Costs,  §  1271. 

Default,  §  1271. 

Infants,  limitation  of  actions  by,  §  1272. 

Information  by  attorney-general,  §  1269. 

Insane  person,  limitation  of  action  by,  §  1272. 

Issue  of  fact,  how  tried,  §  1271. 

Limitation  of  action  on  claims  to,  §  1272. 

Married  women,  limitations  in  actions  by,   §  1272. 

Money  deposited  with  treasurer  to  pay  claim  against 
estate  escheats  when,  §  1514. 

Moneys  in  hands  of  public  administrator,  §  1737. 

Order  to  person  interested  to  show  cause,  §  1269. 

Parties,  §  1271. 

Petition  of  person  claiming,  §  1272. 

Pleadings,   §   1271. 

Proceedings  by  persons  claiming  property,  §   1272. 

Proceedings  relative  to,  manner  of  commencing, 
§  1269. 

Proceedings  to  recover  property,  judgment,  how  satis- 
fied,  §   1272. 

Publication  of  order  to  appear,   §   1269. 

Receiver,  appointment  of,  §   1270. 

Sale  of,  §  1271. 

Sale  of,  confirming,  §  1271. 

Sale  of,  costs  and  attorneys'  fees,  §  12'(X. 

Sale  of,  disposition  of  proceeds,  §  1271. 

Sale  of,  notice  and  time  of,  §  1271. 

Sale  of,  vacating,  §  1271. 

Sale  of,  vesting  of  title,  §  1271. 

Sheriff's  deed,  §  1271. 


862  ESCHEATED    ESTATE— ESTATES    OF    DECEDENTS. 

Summons,   §   1269. 
Trial   of  issues,   §   1271. 

ESTATE,  escheated,  §§  1269-1272.    See  Escheated  Estate. 
Estates  for  life:     See  Life  Estates. 
Life,  disposition  of,  on  owner's  death,  §  1723. 

ESTATE    IN    COMMON,     partition     and     distribution     of, 
§§   1675,   1676. 

See    Cotenants;    Partition. 

ESTATES   OF   DECEDENTS. 

I.     Jurisdiction  over;    disqualification  of  judge. 
II.     Proceedings    in    estates   under  $1,500.00. 

III.  Inventory  and  appraisement. 

IV.  Heirship,  suit  to  adjudge. 

V.  Embezzlement   of;    surrender   of   papers   or    prop- 
erty;   possession   of  estate. 

VI.  Family  allowance. 

VII.  Homestead. 

VIII.  Death  after  action  brought  or  execution   levied. 

IX.  Death  pending  administration,  proceedings  on. 

X.  Debts  of  and  claims  against. 

XI.  Lease  of. 

XII.  Mortgage    of. 

XIII.  Sales  of: 

1.  Generally. 

2.  Of  personalty. 

3.  Of  realty  other  than  mines. 

4.  Of  mines. 

5.  Under  power  in  will. 

XIV.  Distribution: 

1.  Partial. 

2.  Final. 

3.  Distribution  and   partition. 

4.  Estates  of  absentees. 

XV.  Estates    of    non-residents    or    absentees,    proceed- 

ings regarding. 

XVI.  Time  for  settlement  of  and  extension   of. 

XVII.     Costs   and    expenses   of  administration. 

XVlll.     Appeals. 

See    Executor    and    Administrator;     Probate    Courts; 
Public    Administrator. 


ESTATES    OF    DECEDENTS,    I,    II,    III.  863 

Specific  performance  of  decedent's  contract  to  convey: 
See  Executor  and  Administrator. 

I.  Jurisdiction  over;  disqualification  of  judge. 

Disqualified  to  grant  letters,  in  wiiat  cases,  §  1430. 

Disqualified,  transfer,  because  judge,  §§  1431,  1432. 

Disqualification  proceedings  to  be  transferred  to  ad- 
joining county,   §   1431. 

Disqualification,  clerk  to  transmit  certified  copy  of 
order  and  papers,  §  1431. 

Disqualification  of  judge,  transfer  of  proceedings, 
power  of  judge,  §  1431. 

Disqualification  of  judge,  transfer  not  necessary  when 
judge  of  adjoining  county  attends,   §  1431. 

Disqualification  of  judge,  transfer  of  pi'oceedings  does 
not  affect  right  to  letters,  §  1432. 

Disqualification  of  judge,  transfer  of  proceedings  when 
proceedings  to  be  returned,  §  1433. 

Disqualification  of  judge,  transfer  of  proceedings,  pow- 
ers of  judge  on  retransfer,   §  1433. 

Disqualification  of  judge,  retransfer  of  proceedings 
when  new  judge  acts,  §  1432. 

Jurisdiction  decided  by  first  application,  when,  §  1295. 

Jurisdiction,  wills  to  be  proved  in  what  county,  §  1234. 

Nonresident,  jurisdiction  decided  by  first  application, 
§  1295. 

II.  Proceedings  in  estates  under  $1,500.00. 
Administration  when   does  not  exceed  fifteen  hundred 

dollars,  §  1469. 

Collection  of  deposit  in  bank  under  $500.00,  act  au- 
thorizing, p.  767. 

Collection  of  deposit  in  bank  under  $500.00,  proced- 
ure, p.  767,  Stats. 

Proceedings  on  setting  apart  estate  under,  §  1469. 

Setting  apart  estate  under,  §  1469. 

III.  Inventory  and  appraisement. 

Appraisement,   §§   1444,  1445. 

Appraisement,    after-discovered    property,    §    1451. 
Appraisement,    after-discovered    property,    time    to    re- 
turn, §  1451. 
Appraisement,  manner  of,  §  1445. 

Appraisement,  none  if  estate  consists  of  moneys,  §  1446. 
Appraisement  of  partner's  interest,  §  1585. 


8M  ESTATES   OF   DECEDENTS,    III,    IV,    V. 

Appraisement,  time  to  return,  §  1443. 

Appraisement  when  part  of  estate  in  another  county, 

§  1444. 
Appraisement,     appointment     and     compensation     of, 

§   1444. 
Appraisers  may  be  appointed  at  chambers,  §  166. 
Appraisers,  number  of,  §  1444. 
Appraisers,  oath  of,  §§  1445,  1449. 
Appraisers,  who  disqualified  to  act  as,  §  1444. 
Inventory,     after-acquired    property,     time     to     return, 

§  1451. 
Inventory,  after-discovered  property,  §  1451. 
Inventory,     after-discovered    property,    how    enforced, 

§  1451. 
Inventory,    executor   to    include    debt    or     demand     of, 

§  1448. 
Inventory,   executor,   claim  against,  to  be  included  in, 

§§   1447,   1448. 
Inventory,  how  made,  §  1445. 
Inventory,  liability  for  failure  to  return,  §  1450. 
Inventory  may  be  received  at  chambers,  §  166. 
Inventory,  oath  to,  §  1449. 
Inventory  of  partner's  interest,  §  1585. 
Inventory,     revoking    letters    for    failure    to     return, 

§  1450. 
Inventory,  time  to  return,   §  1443. 
Inventory  to  account  for  moneys,   §   1446. 
Inventory  to  be  returned,  including  homestead,  §  1443. 
Inventory  to  contain  what,  §  1445. 
Inventory  to  show   community  and  separate  property, 

§   1445. 
Inventory  where  a  debtor  named  as  exsecutor,   §  1447. 
Inventory  where  estate  consists  of  moneys,   §   1446. 

IV.  Heirship,  suit  to  adjudge. 

Complaint  to  adjudge  heirship,  time  to  file,  §  1664. 
Determining  heirship  on  final  distribution,   §   1664. 
Proceedings  to  determine,  §  1664. 

V.  Embezzlement  of;   surrender  of  papers  or  property; 

possession  of  estate. 

Citation  to  person  intrusted  with,  to  account,   §  1461. 
Citation  of  person  suspected  of  having  writings  or  pa- 
pers belonging  to  deceased,  §  1459. 


ESTATES    OF    DECEDENTS,    V,    VI,    VII.  K65 

Disclosures  may  be  compelled  by  imprisonment,  §  1460. 
Embezzlement,    before    grant    of    letters,    liability   for, 

§  1458. 
Embezzlement,  citation  to  person  suspected,  §  1459. 
Embezzlement,    citation    to    suspected   person,    penalty 

for  refusing  to  obey,  §  1460. 
Embezzlement,    examination    of    person    suspected,    §§ 

1459,  1460. 
Embezzlement,   expenses   of  person  cited  on  suspicion 

of,  §  1459. 
Embezzlement,   punishment  for,   §   1460. 
Liability  for  'double  damages,  §  1460, 
Papers    respecting,   concealed,    how    obtained,    §§    1459, 

1460. 
Persons  intrusted  with,  may  be  cited  to  account,  §  1461. 
Possession,  executor  or  administrator  to  have,  §  1452. 
Possession,  recovery  of,  by  executor  or  administrator, 

§   1452. 
Possession  of  real  estate,  when  to  be  delivered  to  heirs 

or  'devisees,  §  1453. 

VI.  Family  allowance. 

All  exempt  property  to  be  set  aside  for,  §  1465. 

Apportionment  of,   §  H68. 

Dates  from  death,  §  1467. 

Duration  of,  §  1466. 

Extra  or  additional,  §  1466. 

Fifteen  hundred  dollars,  estate  under,  §  1469. 

Homestead,  §§  1464-1468.     See  post,  VII. 

In  general,  §  1464. 

Possession  of  homestead,  §  1464. 

Preference  of,  §  1467. 

Provision  in  will  for,  §§  1560,  1562. 

Wearing  apparel,  furniture,  etc.,  §  1464. 

When  to  be  paid,  §  1646. 

Widow  and  children  may  remain  in  home,  §  1464. 

Widow  with  income,  property  to  go  to  children,  §  1470. 

VII.  Homestead. 

Appraised  at  over  five  thousand,  §  1476. 

Appraisement,  proceedings  where  valuation  too  great, 
§  1476. 

Appraisers,  majority  and  minority  reports,  which  con- 
firmed, §  1477. 
Cade  Civil  Proc— 55. 


ESTATES   OF   DECEDENTS,    VTI. 

Appraisers,  majority  of  may  report,  §  1477. 

Appraisers,   minority  report  of,   §  1477. 

Appraisers,  proceeding  where  do  not  agree,  §  1477. 

Appraiser's  report,  action  on,  §  1477. 

Appraiser's  report,  confirmation  or  rejection,  §  1478. 

Appraiser's   report,   day  to  be  set  for  confirmation  or 

rejection,  §  1478. 
Appraisers'  report,  hearing,  §  1477. 
Appraisers  report  of,  §  1476. 
Appraisers'  report,  objections  to,  §  1478. 
Appraisers,  report  of  thereon,  §  1477. 
Appraisers'  report,  rejection  of,  §  1477. 
Appraisers'  report,  rejection  of,  new  appraisers,  §  1478. 
Appraisers,  report,  what  to  state,  §  1477. 
Appraisers,  when  to  carve  out  of  original,  §  147C. 
Certified  copies  of  final  order  to  be  recorded,  §  1486. 
Certified    copy    of    order    relating    to,    to    be    recorded, 

§  1486. 
Costs  of  homestead,  proceedings  chargeable  to  estate, 
§  1485. 

Disposition  of,  on  death  of  spouse,  §  1723. 

Family  allowance,  §§  1464-1468. 

Liens  and  encumbrances  on,  how  discharged,  §  1475. 

Lien    and    encumbrances    on    to    be   presented    and    al- 
lowed, §  1475. 

Out  of  what  property  set  apart,  §  1465. 

Recording  decree  relative  to,  §  1719. 

Rights   of   those   acquiring   interests    of   successors   to 
homesteads,  §  1485. 

Sale  of,  distribution  of  proceeds,  §  1476. 

Sale  of,  when  not  susceptible  of  division,  §  1476. 

Selected  during  coverture,  in  whom  vests,  §  1474. 

Selected  during     coverture,  not  liable  for  debts,  §  1474. 

Selection  of  by  court  when  decedent  made  none,  §  1465. 

Separate  property,  from,  setting  apart  of,  §  1468. 

Separate  property,  from,  vests  in  heirs,  §  1468. 

Setting  apart,  §§  1465,  1475. 

Setting   apart   for  use   of   survivor   or   minor   children, 
§  1465. 

Setting  apart  where  none  has  been  selected,  §  1465. 

Successors  to  rights  of  homestead  owners,  pov/ers  and 
rights  of,  §  1485. 

Vesting  of  in  survivor,  §  1723. 

Widow  or   children   entitled   to   remain   in  possession 
§  14G4. 


ESTATES    OF    DECEDENTS,     VIII,    IX,    X.  8B7 

VIII.  Death  after  action  brought  or  execution  levied. 

Execution  levied  before  -death,  §  1505. 

Execution  not  to  issue  after  death,  §  1505. 

Judgment  against  decedent  dying  after  verdict  or  de- 
cision, effect  of,  §  1506. 

Judgment  against  decedent,  proceedings  where  execu- 
tion levied,  §  1505. 

Judgment  creditor  may  redeem  property,  §  1505. 

IX.  Death  pending  administration,  proceedings  on. 
Death  of  minor  chil-d  pending  administration,  proceed- 
ings on,  §  1665. 

X.  Debts  of  and  claims  against. 

Claims  against,  action  on  after  time  allowed  for  pres- 
entation, §  1496. 

Claims  against,  action  pending  at  time  of  decease, 
claim  to  be  presented,  §  1502. 

Claims  against,  affidavit  and  allowance,  payment  with- 
out, §  1632. 

Claims  against,  affidavit  must  be  supported  by,  §  1494. 

Claims  against,  affidavit  to  support,  requisites  of, 
§  1494. 

Claims  against,  allowance  in  part,  action  on,  §  1503. 

Claims  against,  allowance  in  part,  effect  of,  §  1503. 

Claim  against,  allowance  in  part,  refusal  to  accept 
costs,  §  1503. 

Claims  against,   allowance  of,  proceedings  on,  §  1496. 

Claim  against,  allowance  or  rejection,  time  for,  §  1496. 

Claim  against,  allowance  or  rejection  to  be  indorsed 
§  1496. 

Claims  against,  allowance  where  claim  payable  In  par- 
ticular kind  of  money,  §  1496. 

Claims  against,  approved  claim,  §  1497. 

Claims  against,  appro^ed  claim,  time  for  filing,  §  1497. 

Claims  against,  barred  by  limitation,  §  1499. 

Claims  against,  bearing  interest,   payment,   §   1513. 

Claims  against,  by  ju-dgment  creditors,  not  allowed  to 
be  filed,  §§  1504-1506. 

Claims  against,  clerk  to  enter  in  register,  §  1497. 

Claims  against,  contingent,  paying  into  court,  §  1648. 

Claims  against,  decree  showing  notice  to  creditors  has 
been   given,   §  1492. 

Claims  against,  deposit  with  treasurer,  proceedings 
where  claimant  does  not  claim,  §  1514. 


ESTATES    OF    DECEDENTS,    X. 

Claims  against,  deposit  of    amount  of  claim  with  treas- 
urer  where   claimant   cannot   be   found,   §   1514. 

Claims  against,  disputed,  paying  into  court,  §  1648. 

Claims  against,  examination  of  claimant  as  to  validity, 
§  1499. 

Claims  against,  executor  paying  for  less  than  its  value, 
§  1617. 

Claims  against,  filin-g,  §  1497. 

Claims   against,   founded   on   instrument,   copy   thereof 
to  be  filed,  §  1497. 

Claims    against,     indorsing     allowance    or    rejection, 
§   1496. 

Claims  against,  interest  on,  §  1513. 

Claims  against,   judgment  against  executor,   effect  of, 
§   1504. 

Claims  against,  judgment  creditors,  §  1505. 

Claims  against,  judgment,  when  not  a  lien  on,  §§  1504, 
1506. 

Claims  against,  limitations,  what  time  not  included  in, 
§  1501. 

Claims  against,  lost  instrument,  how  presented,  §  1497. 

Claims  against,  mortgage,  failure  to  present,  effect  of, 
§  1500. 

Claims  against,  mortgage  need  not  be  presented  before 
action,  §  1500. 

Claims    against,    mortgage,   presentation   of   claim    se- 
cured by,  §  1497. 

Claims  against,  must  be  presented  before  suit,  except 
when,  §  1500. 

Claims  against,  notary^s  certificate  as  evidence  of  al- 
lowance or  rejection,  §  1496. 

Claims  against,  not  due,  discount,  §  1648. 

Claims  against,  not  included  in  order  for  payment  of 
debts,  how  disposed  of,  §  1650. 

Claims  against,  notice  to  creditors,  copy  and  affidavit 
of  publication  to  be  filed,  §  1492. 

Claims    against,    notice    to    creditors,    decree    showing 
giving  of,  §  1492. 

Claims  against,  notice  to  creditors,  failure  to  give,  lia- 
bility of  executor,  §  1650. 

Claims  against,  notice  to  creditors,  form  of,  §  1490. 

Claims  against,  notice  to  creditors,  publication  or  post- 
ing of,  §  1490. 


ESTATES   OF   DECEDENTS,    X.  86a 

Claims  against,  notice  to  creditors,  removal  or  resig- 
nation, notice   by  successor,   §   1490. 

Claims  against,  notice  to  creditors,  time  for,  §  1490. 

Claims  against,  notice  to  creditors,  revoking  letters  for 
failure  to  give,  §  1511. 

Claims  against,  notice,  time  to  present  claim  where 
claimant  had  no,  §  1493. 

Claims  against,  notice  to  creditors,  time  to  present 
claims,  §  1491. 

Claims  against,  payment  before  due,   §  1648. 

Claims  against,  presented  by  superior  judge,  proceed- 
ings thereon,  §  1495. 

Claims  against,  provision  for  disputed  and  contingent, 
§  1648. 

Claims  against,  purchase  of,  by  executor,  not  per- 
mitted, §  1617. 

Claims  against,  reference,  §  1507. 

Claims   against,  reference,   costs,   §   1508. 

Claims  against,  reference,  entering  minute  of  order, 
§  1507. 

Claims  against,  reference,  judgment  on  referee's  re- 
port, §  1508. 

Claims  against,  reference,  report,  confirmation  and  ef- 
fect, §  1508. 

Claims  against,  reference,  report  of  referee,  effect  of, 
§  1507. 

Claims  against,  reference,  trial  by  referee,  §  1508. 

Claims  against,  rejected,  must  be  sued  on  within  three 
months,   §  1498. 

Claims  against,  rejection  of,  proceedings  on,   §  1496. 

Claims  against,  rejection  of,  what  equivalent  to,  §  1496. 

Claims  against,  secured  by  lien,  describing  li,en, 
§  1497. 

Claims  against,  statement  of,  executor  to  return, 
§  1512. 

Claims  against,  statement  of,  what  to  show,  §  1512. 

Claims  against,  statute  of  limitations  does  not  run 
against   pending   administration,    §    1569. 

Claims  against,  superior  judge  may  present,  §  1495. 

Claims  against,  time  for  presenting,  §§  1491,  1493,  1496. 

Claims  against,  time  for  presenting,  when  claimant 
had  no  notice,  §  1493. 


870  ESTATES    OF   DECEDENTS,    X. 

Claims  against,  time  to  present,  effect  of  vacancy  in 
administration,  §  1501. 

Claims  against,  vouchers  may  be  required,  §  1494. 

Claims  against,  wages  preferred,  §  1205. 

Claims  against,   withdrawing  original  voucher,   §   1497. 

Claims  oi  executor  against,  presenting  and  allowing, 
§  1510. 

Claims  of  executor  against,  rejection  of,  and  suit 
thereon,  §  1510. 

Debts  against  executor,  discharge  or  bequest  of  in 
will,  §  1448. 

Debts,  apportionment,  where  funds  insuflicient,  §§  1645. 
1647. 

Debts,  dividends  to  creditors,  when  estate  insuflicient, 
§  1645. 

Debts,  execution  on  decree  for  payment  of,  §  1649. 

Debts,  funeral  expenses,  when  to  be  paid,  §  1646. 

Debts,  judgment   against,   order  of  payment,   §   1643. 

Debts,  last  sickness,  payment  of  expense  of,  §§  1643, 
1646. 

Debts,  mortgage,  preference  of,  extent  of,  §  1644. 

Debts,  need  not  be  paid  until  court  orders,   §  1646. 

Debts,  order  for  payment  of,  and  discharge  of  execu- 
tor, §  1647. 

Debts,  order  of  payment,  §  1643. 

Debts,  order  of  payment,  disposition  of  claims  not  in- 
cluded in,  §  1650. 

Debts,  paying  according  to  provision  of  will,  §§  1560, 
1562. 

Debts,  pei'^onal  liability  of  executor  for,  after  decree 
of  payment,  §  1649. 

Debts,  preferences,   §§   1643-1645. 

Debts,  preference,  wages  preferred,  §  1205. 

Debts,  priority,  none  between  real  and  personal  prop- 
erty for,   §   1516. 

Debts,  proceedings  where  funds  insufficient,  §  1647. 

Debts,  property  chargeable  with,   §   1516. 

Debts,  property  chargeable,  priority  between  realty 
and  personalty,  §  1516. 

Debts,  property  fraudulently  conveyed  and  recovered 
to  be  used  for.  §  1591. 

Debts,  provision  in  will  respecting,  §§  1560,  1562. 

Debts,  specific  devises  and  legacies,  how  far  exempt, 
§§  1563,   1564. 

Debts,  uncollected,  executor's  liability  for,  §  1615. 


EJSTATES   OF   DECEDENTS,    X,    XI,    XU.  «I 

Debts,  what  exempt  from,  §  1563. 
Debts,  what  subject  to,  §  1563. 
Devise,  specific,  how  far  exempt,  §  1563. 
Statute  of  Limitations  does  not  run  pending  settlement 
of,  §  1569. 

XI.  Lease   of. 

Appraisement  of  rental  value,  §  1579. 

Effect,  §  1579. 

Execution  of,   §  1579. 

Hearing,  §  1579. 

Hearing,    witnesses,    §    1579. 

Irregularities  in,  effect  of,  §  1579. 

Jurisdiction,  §  1579. 

Order  for,  §  1579. 

Order,  certified  copy  to  be  recorded,  §  1579. 

Order  to  show  cause,  §  1579. 

Petition  for,  to  contain  what,  §  1579. 

Proceedings  for,  §  1579. 

Recording,  §  1579. 

Terms  of,  §  1579. 

When  may  be  authorized,  §  1577. 

Who  may  petition  for,  §  1579. 

XII.  Mortgage  of. 

Authorized,  when  may  be,  §  1577. 

Deficiency  judgment,  §  1578. 

Effect,  §  1578. 

Execution  of  notes  and  mortgages,  §  1578. 

Foreclosure,  §  1578. 

Foreclosure,    indebtedness    remaining    unsatisfied,    how 

disposed  of,  §  1578. 
Hearing,  §   1578. 
Hearing,  witnesses,  §  1578. 
Insurance  on  mortgaged  buildings,  §  1578. 
Interest,  §  1578. 

Irregularities  in,  effect  of,  §  1578. 
Order  for,  §  1578. 

Order,  certified  copy  to  be  recorded,  §  1578. 
Order  of  payment,  §§  1643,  1644. 
Order  to  show  cause,  §  1578. 
Petition  for,  to  contain  what,  §  1578. 
Recording,   §  1578. 
Who  may  petition  for,  §  1578. 


!  ESTATES    OF   DECEDENTS.    XIII. 

XIII      Sales. 

1.  Generally. 

Contracts  to  convey:  See  Executors  and  Adminis- 
trators. 

Court  must  order  sale,  when,   §   1525. 

Debts,  all  property  liable  for,  §  1516. 

In  general,  §  1516. 

Must  be  under  oath,  §  1517. 

Nonresident,  sale  of  delivery  of  property  where  dece- 
dent a,  §  1667. 

No  priority  between  realty  and  personalty,  §  151b. 

Not  valid  except  by  order  of  court,  §  1517. 

Petition  for,  defective,  curing,  §  1518. 

Petition  for,  requisites  of,  §§  1518,  1519. 

Petition  for,  objections  to,  and  hearing  of,  §  1518. 

Petition  may  include  realty  and  personalty,  §  1536. 

Private,  time  of  making,  §  1549. 

To  be  confirmed,  §  1517. 

To  be  reported,   §   1517. 

What  property  to  be  sold  first,  §  1525. 

Where  decedent  a  nonresident,  §  1667. 

2.  Of  personalty. 

Conduct  of,  §§  1526,  1527. 

Notice  of  application  for,  §  1523. 

Notice,   posting  and   publishing,   §   1526. 

Order  for,  §  1523. 

Partnership  interests  may  be  sold,  §   1524. 

Pai'tnership     interests,     inquiry     before     confirmation, 

§   1524. 
Partnership   interests,  how   sold,   §   1524. 
Perishable  property,   §   1522. 

Perishable  property,   liability  of  executor,   §   1522. 
Perishable  property,  no  notice  necessary,  §  1522. 
Personalty     fraudulently     transferred      by      decedent, 

§  1591. 
Personalty  must  be  present,  §  1526. 
Petition  for,  §  1523. 
Petition,   order   and    sale,    but    one    necessary    when, 

§  1522. 
Petitions,  renewing,  §  1523. 
Place  of,  §   1526. 
Public  auction,  §  1526. 


ESTATES    OF    DECEDENTS,    XIII.  87:i 

Sale  of  on  application  for  sale  of  realty,  §  1527. 
Unclaimed  personalty  of  absentee,  sale  of,  §  1693. 
When  will  be  ordered,  §  1525. 

3.  Of  realty  other  than  mines. 
Account  of,  to  be  returned,  §  1575. 
Account  of,  liability  of  executor  for  failure  to  make, 

§  1575. 
Account  of  attachment,  neglect  to  return,  §  1575. 
Account   of,    neglect   to    return,    revocation    of   letters, 

§   1575. 
Amount  to  be  returned  within  thirty  days,  §  1575. 
Application  for,  manner  of  sale  of  personalty  on,  §  1639. 
Appraisement,  sale  for  more  or  less  than,  §  1614. 
Bond  not  required  where  dispensed  with  in  will,  §  1396. 
Bond  required  although  dispensed  with  in  will,  when, 

§   1396. 
Bond,  additional,  when  and  when  not  ordered,  §  1389. 
But  one  petition,  order,  and  sale  to  be  had  when,  §  1519. 
Compelling  to  make,  §  1544. 
Confirmation,  petition  for  need  not  publish  description 

of  realty,  §  1712. 
Confirmation  of,  §§  1552,  1553,  1556,  1561. 
Confirmation,  increased  bid  of  ten  per  cent,  §  1552. 
Confirmation,  when  to  be  confirmed,  §  1554. 
Confirmation  of,  recording  the  order,  §  1554. 
Confirmation,  order  of,  to  show  proof  of  notice,  §  1556. 
Contract   for   purchase   of   land,    conditions   of   sale,   § 

1566. 
Conveyance,  contents  of,  §   1555. 
Conveyance,  execution  of,   §   1555. 
Conveyance,  what  passes,  §  1555.     • 
Credit,  §  1544. 
Credit,  security,  §  1551. 
Deed,  requisites  of,  §  1555. 

Description   of  realty  to  be  sold,  one  publication  suf- 
ficient,   §   1712. 
En  masse,  or  parcels,  §  1544. 

Executor  cannot  purchase  or  be  interested,  §  1576. 
Fraudulent,  liability  of  executor,   §   1572. 
Fraud  in,  executor  liable  in  double  damages,  §  1572. 
Fraudulent  conveyance  by  decedent,   §  1591. 
Fraudulently     conveyed     by    decedent    and     recovered, 

§  1591. 
Fraudulent    conveyance     by     executor,     disposition    of 

property  on  recovery,  §  1591. 


874  ESTATES    OF    DECEDENTS,    XIII. 

Grounds  for   ordering,   §§   1536,   1542,   1543. 

Hearing,  §  1540. 

Hearing,  claims  may  be  passed  on  at,  §  1540. 

Hearing,  examination  of  executor,  §  1541. 

Hearing,  examination  of  witnesses,  §  1541. 

Hearing,  order  of  sale,  §  1543. 

Incumbered,    mortgagee    or    lienholder   as    purchaser, 

§  1570. 
Incumbered  realty,  proceeds  hov/  applied,  §  1569, 
Incumbered,  deposit  of  proceeds  in  court,  §  1509. 
Incumbered  realty,  surplus,  §  1569. 
In  general,  §  1536. 

Limitation  of  actions  to  set  aside,  §§  1573-1574. 
Limitation  of  action  to  vacate,  |§  1573,  1574. 
Limitation   of   action   to   recover   estate   sold,   §§   1573, 

1574. 
Limitation  of  actions  to  set  aside,  effect  of  disabilities, 

§§  1573,  1574. 
Manner  of  sale  of  land,  §  1544. 
Misconduct  in,   executor's  liability,    §§   1571,  1572. 
Neglect  or  misconduct  of  executor,  liability  for,  §  1571. 
Notice  dispensed  with  by  assent  in  writing,  §  1539. 
Notice  of,  posting  and  publishing,  §   1547. 
Notice  of,  requisites,  §  1547. 
Notice  of,  to  be  proved,  §  1556. 
Objections  to  confirmation  of,  §  1553. 
One  published  description  sufficient,  §  1712. 
Order  for,  what  to  contain,  §  1544. 
Order  may  include  all  or  any  part,  when,  §§  1542,  1543. 
Order  to  show  cause,  §  1538. 
Order  to  show  cause,  proof  of  service,  §  1540. 
Order  to  show  cause,  service  of,  §  1539. 
Personalty,   sale  of  on   application  for  sale  of  realty, 

§   1039. 
Petition  to  be  filed,  §  1538. 
Petition  by  interested  party  when  executor  neglects  to, 

§  1545. 
Petition  by  interested  party,  contents  and  notice,  §  1545. 
Petition  may  include  personalty,  §  1536. 
Petition  for,  failure  to  set  forth  requisite  facts,  §  1537. 
Petition  for,  verified,  §  1537. 
Petition  for,  what  to  contain,  §  1537. 
Place  and  time  of,  §  1548. 


ESTATES    OF    DECEDENTS,    XIII,    XIV.  175 

Place  of,  where  land  in  two  counties,  §  1548. 

Postponement  of,  §  1557. 

Postponement  of,  notice,   §  1558. 

Private   appraisement,   §   1550. 

Private,  bids,  §  1549. 

Private,  how  made,  §  1549. 

Private,  ninety  per  cent  must  be  offered,  §  1550. 

Private,  notice  of  posting  and  publishing,  §  1549. 

Private  sale,  notice  of,  what  to  state,  §  1549. 

Provision    by    will    insufficient,     what    property    sold, 

§  1562. 
Provision  in  will,  §§  1560,  1561. 
Public  or  private,  §  1544. 
Refusal  of  purchaser  to  comply,  §  1554. 
Resale,  §§  1552,  1554. 
Return  and  hearing  thereon,  §  1552. 
Return  of  sale  to  be  made,  §  1575. 
Return,  of,  failure  to  make,  punishment  for,  §  1575. 
Time  and  place  of,  §  1548. 
Vacation  of,  §  1552. 
What  title  and  interest  pass,  §  1555. 
When  may  be  ordered,  §§  1536,  1542,  1543. 
Where  part  devised,  §  1544. 
Without  order  of  court,  §  1561. 

4.  Of  mines. 

Mines  may  be  sold  when,  §  1529. 

Notice  may  be  dispensed  with  when,  §  1531. 

Order  of,  how  made,  §  1532. 

Order  of,  when  will  be  made,  §  1532. 

Order  to  show  cause,  §  1531. 

Petition  for,  by  partner,  §  1530. 

Petition  for,  what  to  contain,  §  1530. 

Proceedings  on  sale  of,  §  1533. 

Who  may  petition  for,  §  1530. 

5.  Under  power  in  will. 
Directions  to  be  followed,  §  1561. 
Order  not  necessary,  §  15G1. 

To  be  confirmed,  §  1561. 

To  be  returned  and  cofirmed,  §  1561. 

XIV.     Distribution: 
1.  Partial. 
Bond  for,  §§  1658,  1661,  1603. 


R78  ESTATES    OF   DECEDENTS,    XIV. 

Bond  may  be  dispensed  with  when,  §  1663, 

Bond,  payment  or  suit  on,  §§  1652,  1663. 

Costs,  §§  1661,  1663. 

Costs  of  proceedings  for,  paid  by  applicant,  §  1668. 

Execution  of  order  for,  §  1661. 

Executor  or  administrator  may  resist,  §  1660. 

Heir,   legatee   or    devisee   may   petition   for  after  one 

year,    §   1663. 
Notice  of  application  for,  §§  1659,  1663. 
Order  for,  §  1661. 

Order  for  delivery  of  ,property,  §  1663. 
Partition,  §  1661. 
Petition    for,    executor   or    administrator    may   resist, 

§  1663. 
Petition  for,  any  interested  person  may  resist,  §§  1660, 

1663. 
Proceedings   to   determine   interest  of  heir,  legatee  or 

devisee,  §  1668. 
Time  for,  §  1658. 
When  may  be  ordered,  §  1661. 
Who  may  apply  for,  §  1660. 
Who  may  resist,  §§  1660,  1663. 

2.  Final. 

Advancements  to    heirs,    questions    as  to    determined, 

§   1686. 
Answer  and  service  thereof,  §  1664, 
Appeal,  §  1664. 

Appearance  to  be  filed,  §  1664. 
Appearance  to  be  entered,  §  1664. 
At  the  time  of  executor's  settlement,  §  1634. 
Attorney  for  minor,  §  1664. 

Attorney  to  file  written  evidence  of  authority,  §  1664. 
Complaint  and  service  thereof,  §  1664, 
Conclusiveness    of,    §    1664. 
Conclusiveness  of  decree,  §  1666. 
Costs,  §  1664. 

Decree  for,  to  contain  what,  §  1666. 
Decision    on     question     of    advancements,     effect     of, 

§  1686. 
Decree  relating  to  to  be  recorded,  §  1719. 
Default  to  be  adjudged,  §  1664. 
Depositions,   §  1664, 
Evidence,  §  1664. 


E5STATES    OF    DECEDENTS,    XrV.  87T 

Executor's  statement  of  account,  §   16G5. 

Hearing,  §  1668. 

Heirship,  determining  on,  §  1664. 

Homestead,  setting  apart  on  death,  §  1475. 

Infant   or   incompetent   without   guardian,   proceedings 

in  case  of,  §  1703  y,. 
Infant  or  incompetent  without  guardian,  deposit  with 

treasurer,  and  how  withdrawn,  §  1703 V^. 
Judgment  in,  conclusiveness  of,  §  1664. 
Jurisdiction  after  to  settle  accounts  of  trustees,  §  1699. 
Jurisdiction,  when  acquired,  §  1664. 
Manner  of,  §  16C5. 
New  trial,  §  1664. 
Notice,  §  1668. 

Notice  of,  proof  of  service,  1664. 
Notice  of,  requisites,  §  1664. 
Notice  of,  service,  §  1664. 
Notice,  further,  §  1668. 
On  whose  petition  made,  §  1668. 
Order  for   where   all   debts   paid   by   first   distribution, 

§  1651. 
Order  not  necessary,  §  1561. 
Order  to  show  cause,   §   1664. 
Parties,  §  1664. 
Partition,  §  1668. 
Petition  for.   §  1664. 
Practice,  rules  of,  §  1664. 
Setting  petition,  §  1668. 
Settlement  of  executor's  account,  §  1665. 
Statement  of  receipts  and  ■disbursements,  §  1665. 
Taxes  must  be  paid,  §  1669. 
Treasurer  to,  when,  §  1703i^. 
To  whom  made,  §  1C65. 
When  may  be  made,  §  1665. 
Who  may  petition  for,  §  1668. 

3.  Distribution  and  partition. 
Any  person  interested  may  petition,  §  1676. 
Assigning  whole  estate  to  one  on  payment  to  others, 

§  1680. 
At  time  of  executor's  settlement,  §  1634. 
Commissioners  for  partition,  appointing,  §  1675. 


878  ESTATES   OF   DECEDENTS,    XIV,    XV. 

CommissioRers   to  make,  not  necessary,  when,   §   1685. 

Commissioners,   time  of  appointment,   §   1676. 

Commissioners,  number  of,  §  1675. 

Commissioner,  one  only  may  he  appointed,  §  1675. 

Commissioner,  to  be  sworn,  §  1C75. 

Commissioners,  appointment,  oath  and  warrant,  §  1675. 

Commissioners,  powers  of,  §  1CS3. 

Commissioners   may  take   testimony,  etc.,   §   16S3. 

Commissioners  to   report,   §   1684. 

Commissioners'  report,  conllrraing  or  rejecting,  §  1684. 

Commissioners'   report,  recording,   §   1684. 

Commissioners,  new,   §  1684. 

Notice,  §  1683. 

Of  estate  in  common,  §§  1675,  1676. 

Of  estate  in  different  counties,  §  1677. 

Owelty,  §  1881. 

Payments  for  eauality,  §  1681. 

Petition,  notice  of,  for,  §  1676. 

Petition  and  notice,  time  for  filing  and  giving,  §  1676. 

Petition  for,  notice  of,  to  whom,  given,  §  1676. 

Proceedings,  where  property  cannot  be  divided  without 

injury,  §  1681. 
Sale  may  be  ordered,  §  1682. 
Sale  for  distribution   and   partition,   §   1681. 
Sale,  how  conducted,  §  1682. 

Shares  to  be  set  out  by  metes  and  bounds,  §  1679. 
Treasurer  to,  when,  §  1703y2. 
Where  some  heirs  parted  with  interest,  §   1678. 
Who  may  petition  for,  §  1676. 
Whole  estate  assigned  to  one,  when,  §  1680. 

4.  Estates  of  absentees:  See  post,  XV. 

XV.     Estates  of  nonresidents  or  absentees,   proceedings 
regarding. 

Absentee's  interest  in,  disposition  of,  §§  1691-1695. 

Certificate  of  absentee  for  proceeds  of,  §  1696. 

Distribution,  absentee,  agent,  statute  providing  for  ap- 
plies  to   pending   estates,   §   1691. 

Distribution,  absentee,  agent,  appointment  of,  to  take 
possession,    §    1691. 

Distribution,  absentee,  agent  for,  bond  and  compensa- 
tion of,  §§   1692,  1695. 


ESTATES    OF   DECEDENTS,    XV,    XVI,    XVII.  S7!) 

Distribution,  absentee,  agent  liable  on  his  bond,  §  1695. 
Distribution,  absentee,  agent  for,  accounting  by,  §  1C94. 
Distribution,  absentee,   agent,    evidence   in   accounting 

by,  §  1694. 
Distribution,     absentee,     certificate     of,    for     proceeds. 

§  1686. 
Distribution,  absentee,  court  appoint  agent  for,  §  1691. 
Distribution,    absentee,    deposit    of    moneys    for,    with 

county  treasurer,  §  1G91. 
Distribution,  absentee,  interest  of  sold,  when,  §  1694. 
Distribution,  absentee,   unclaimed   personalty  in  hands 

of  agent,  disposition  of,  §  1693. 
Distribution     to      treasurer,     how      money     paid     out. 

§  17031/0. 
Distribution  to  treasurer  when  distributee  a  minor  or 

incompetent  without  guardian,  §  1703 '/„. 
Distribution  to  treasurer   where  distributee  cannot  be 

found,  §  17031/0. 
Distribution,   where  decedent  nonresident,   delivery   of 

property,  §  1667. 
Sale,  absentee's  interest,  of,  §  1694. 
Unclaimed:    See  Public   Administrator,  §   1739. 
Unclaimed,  how  disposed  of,  §  1693. 

XVI.  Time  for  settlement  of  and  extension  of. 

Closing  administration,  petition  for,  §  1670. 
Continuance    of    administration,    procedure    to    obta,in, 

§  1670. 
Extension  of  time  for  administration,  where  will  puts 

limitation  thereon,  §  1670. 
Settlement,  final,  extension  of  time  for,  §  1651. 
Settlement,  final,  when  to  be  made,  §  1652. 
Settlement:   See  Executor  and  Administrator,  XII. 

XVII.  Costs  and  expenses  of  administration. 

Attorney's  fees,  §§  1616,  1619. 

Costs,  by  whom  'to  be  paid,  §  1720. 

Cost  of  final  distribution,  §  1664. 

Costs   of  proceedings   for  partial   distribution    §§   1660 

1661,  1663. 
Costs,  execution  for,  §  1720. 
Expenses       of      administration,    executor    may    retain 

§  1646. 
Expenses     of    administration,    provision    in    will    for 

§§  1560,  1562. 


880  ESTATES    OF    DECEDENTS,    XVIII— EVIDENCE,    I. 

XVIII.     Appeals. 

Appeal  lies  from  what  orders  respecting,  §  963. 

Appeal  from  order  respecting,  time  for,  §  933. 
ESTOPPEL  in  pais,  §  1962. 

Landlord  and  tenant,  §  1962. 

Standing  by,  §  19G2. 

Sureties  bound  by,  §  1912. 

To  deny  judgment,  §§  1908-1915. 
EVICTION  of  execution  purchaser,  re 'ress,  §  708. 
EVIDENCE. 

I.     Definitions. 

II.     Kinds  and   degrees  of: 

1.  Generally. 

2.  Primary  and  secondary. 

3.  Indispensable. 

4.  Prima  facie. 

5.  Partial. 

6.  Conclusive  and  unanswerable. 

7.  Direct,    indirect, ,  inferences,    presumptions. 

8.  Cumulative;    corroborative;     slight;     satisfac- 

tory. 

III.  Parol   evidence. 

IV.  Expert    and    opinion    evidence. 
V.     Judicial  notice. 

VI.  Declarations,    admissions,    conversations,    omissions. 

VII.  Documentary  evidence. 
VIM.     Usages  and  customs. 

IX.  Hearsay;  res  gestae;  material  objects. 

X.  Burden  of  proof. 

XI.     Admissibility  and   relevancy: 

1.  Generally. 

2.  On   subject   of  handwriting. 

3.  On  question  of  pedigree. 

4.  Testimony  at  former  trial. 

5.  Particular  facts  or  questions,  how  proved. 

XII.  Weight  and  sufficiency  of. 

XIII.  Questions  of  practice  relating  to. 

See  Depositions;  Witnesses. 
I.     Definitions. 
Conclusive,  defined,  §  1837. 
Corroborative,  defined,  §  1839. 
Cumulative,  defined,  §  1838. 


EVIDENCE.    I,    n.  i»J 

Direct,  defined,  §  1831. 
Evidence  defined,  §  1823. 
Indirect,  defined,  §  1832. 
Indispensable,  defined,   §   1836. 
Inference,  defined,  §  1958. 
Law  of,  defined,  §  1825. 
Proof  defined,   §   1824. 
Slight,  defined,  §  1835. 

II.     Kinds  and  degrees  of  evidence: 

1.  Generally. 

Degrees  of,  specified,  §  1828. ' 
Kinds  of,  four,  §  1827. 

2.  Primary  and  secondary. 
Certified  copies,  admissible,  §  1893. 
Copies  of  afladavits  as,  §  2011. 

Copies  of  entries,  when  admissible,  §  1947. 

Copies  of  records,  certified,  admissible  without  further 

proof,  §  1951. 
Judicial  record  of  foreign  country,  secondary  evidence 

of,  §  1907. 
Law,  certified  copy  of,  admissible,  §  1901. 
Lost  paper,  when  copy  may  be  used,  §  1045. 
Parol    evidence    of    writing,    is     secondary    evidence, 

§   1830. 
Primary  defined,  §  1829. 
Record,  certified  copies  of,  admissible  without  further 

proof,  §  1951. 
Secondary,   definition  of,  §  1830. 
Secondary,  copy  of  judicial  record  of  foreign  country, 

when  admissible,  §  1907. 
Secondary,    of   contents  of   writings,    when   admissible, 

§  1855. 
Secondary,  where  party  fails  to  produce  writing  after 

notice,  §  1938. 
Transcript  of  court  minutes  to  be  evidence  equivalent 

to  letters  of  administration,   §   1429. 
Writing,  copy  of,  is  secondary  evidence,   §   1830. 
Writings,  lost,  proof  of  loss  necessary,  §  1937. 
Writing,   notice   to    produce,    disobedience,    secondary 

evidence,  §  1938. 

Code  Civil  Proc— 56. 


S«2  EVIDENCE,     II. 

Writing,  oral  contents  of,  is  secondary,   §  1830. 

Writing,  original  must  be  produced,  §  1937. 

Writing,    parol   evidence     of,     is     secondary    evidence, 

§   1830. 
Writing,  public,  certified  copy  of,  admissible,  §  1901. 
Writings,  secondary,  of  contents  of  lost,  §  1937. 
Writing,    secondary,    when    not   produced    after   notice, 

§   1938. 
Written  instrument  best  evidence  of  its  existence  and 

contents,   §   1829. 

3.  Indispensable. 

Defined,  §  1836. 

In  general,  §§  1967-1970. 

Perjury,  §  1968. 

Perjury,  number  of  witnesses  necessary,  §  1844. 

Treason,  §  1968. 

Treason,  number  of  witnesses  necessary,   §   1844. 

When  necessary,  §  1967. 

4.  Prima  facie. 

Boards,  entries  by,  §§  1920,  1926. 
Books  of  science  or  art,  §  1936. 
Certificate  of  recording  officer,  §  1833. 
Charts,  §  1936. 
Decedent's   entries,   §   1946. 
Definition  of,   §   1833. 
Historical  books,  §  1936. 
Justice's  docket,  §  912. 
Maps,   §   1936. 

Officer's  entries,   §§    1920,   1926. 
Orders  not  final,  §  1909. 
Patent  to  land,  date  of,  §  1927. 
Presumption,  what  is,   §1959. 
Reporter's  notes,  transcript  of,  §  273. 
Third   person,   obligation   of,    evidence   against   him   is 
evidence  against  party,  §  1851. 

5.  Partial. 
Defined,  §  1834. 

Evidence   of   possession    of   remote   occupant   on    ques- 
tion of  title,  §  1834. 
When  admissible,  §  1834. 

6.  Conclusive;    unanswerable. 
Conclusive,  defined,   §  1837. 
Conclusive,  in  general,   §   1978. 


EVIDENCE,    11,    III,    IV.  883 

Conclusive,  record  of  court,  parties  cannot  contradict, 
§  1837. 

Entry  in  minutes  conclusive  evidence  of  notice  of  pe- 
tition for  letters,  §  137G. 

Record  of  court,  parties  cannot  contradict,  §  1837. 

Unanswerable,  in  general,  §  1978. 

7.  Direct,    indirect,    presumptions,    inferences. 
Direct,  defined,  §  1831. 

Direct,  evidence  of  v.itness  to  agreement  is,  §  1831. 

Direct,  evidence  of  witness  to  writing  is,  §  1831. 

Indirect,  classified,  §  1957. 

Indirect,  defined,  §  1832. 

Inferable,  facts  from  which  other  facts  are,  §  1870. 

Inference  arises,  when,  §  1960. 

Inference,  defined,   §   1958. 

Infei'ence  from  admission,   §   1832. 

8.  Cumulative;    corroborative;    slight;    satisfactory. 
Corroborative,   defined,    §   1839. 

Cumulative,  defined,  §  1838. 
Satisfactory,  defined,  §  1835. 
Slight,  defined,  §  1835. 

III.  Parol  evidence. 

Instrument,  evidence  that  words  have  peculiar  signifi- 
cance,  §   1861. 

Of  contents  of  writing,   §   1870. 

Of  laws  of  sister  state  or  foreign  country,  §  1902. 

To  establish  illegality  or  fraud,  §  1856. 

To  explain  ambiguity  in  writing,  §  1856. 

Will,  parol  evidence  not  admissible  to  affect,   §  1856. 

Writing,  parol  evidence,  when  admissible  to  affect, 
§  1856. 

IV.  Expert  and  opinion  evidence. 
Expert  may  decipher  instrument,   §   1863. 
Expert;     See   Witnesses. 

Insanity,  opinion  of  subscribing  witness  as  to,  §  1870. 
Insanity,     opinion    of    intimate     acquaintance     as     to, 

§  1870. 
Interpreter,  when   summoned,   and   duty   of,   §   1884. 
Opinion  as  to  identity  or  handwriting,  §  1870. 
Opinions  on  questions  of  science,  art  or  trade,  §  1870. 


884  EVIDENCE,    V,    VI. 

V.  Judicial    notice. 

Court  to  declare  to  jury,  §  2102. 
In  general,  §  1827. 
Is  taken  of  what  facts,  §  1875. 
Nature,   laws  of,  judicially  recognized,   §   1875. 
Official  acts,   public  and   private,  are  judicially  recog- 
nized, §  1875. 

VI.  Declarations;  admissions;  conversations;  omissions. 

Admission,  inference  from,  §  1832. 

Admission  of  execution  of  writing,  §  1942. 

Admission,  offer  to  compromise  is  not,  §  2078. 

Admissions  of  predecessor,  §  1849. 

Admissions,   oral,   viewed  with   caution,   §   2061. 

Conversation,  all  admissible  where  part  admitted, 
§   1854. 

Declarations,  acts  or  omissions  of  another,  one  person 
not  affected  by,  §  1848. 

Declarations,  admissible  against  party  making,  §  1870. 

Declarations,  agent,  as  evidence,   §   1870. 

Declarations,  agent,   when  admissible,   §  1870. 

Declaration,   all  admissible  if  part  admitted,   §   1854. 

Declarations  as  part  of  res  gestae:     See  post,  IX. 

Declarations,    conspirator,    §    1870. 

Declarations,  decedent,  admissibility  against  his  suc- 
cessor  in   interest,    §   1853. 

Declarations,  decedent,  against  interest,  §  1870. 

Declarations,  decedent,  relating  to  birth,  §   1870. 

Declarations,  decedent,  relating  to  death,  §  1870. 

Declarations,   decedent,   relating  to  marriage,   §  1870. 

Declarations,  decedent  as  to  pedigree,   §§  1852,   1870. 

Declarations,    decedent  respecting  relationship,   §   1870. 

Declarations,  decedent,  acts  or  omissions  of,  admissi- 
bility against  successor,  §  1853. 

Declarations  of  decedent  generally,  §  1870. 

Declarations,  dying,   §  1870. 

Declarations  in  general,  §  1870. 

Declarations,  member  of  family  as  to  common  reputa- 
tion, §  1852. 

Declarations,  member  of  family  as  to  pedigree,  §  1852. 

Declarations,  one  jointly  interested,  when  admissible, 
§  1870. 

Declarations,  partner,  when  admissible,   §   1870. 

Declarations  of  predecessor,   §   1849. 

Declarations,   third  person,   when  admissible,   §  1870, 


EVIDENCE,    VI,    ^^I.  8S5 

Declarations,  third  person,  not  to  prejudice,  §  1848. 
Declarations   of   third   person,   conduct   in    relation   to, 

§  1870. 
Declarations,  written  under    oath  to  be  by  deposition, 

§  2020. 
Omissions,  as  evidence  against  party,  §  1870. 

VII.     Documentary  evidence. 

Affidavits,  what  provable  by,  §§  1379,  2009. 

Accounts,  summary  of,  admissible  when,  §  1855. 

Acknowledgment,  certificate  of  as  evidence,  §  1948. 

Books  containing  law  presumed   correct,   §   I'JOO. 

Books  containing  published  decisions  admissible,  §  1902. 

Books,  official,  entries  in  as  evidence,  §  1920. 

Books,   historical,   §    1936. 

Books  of  art,  §  1936. 

Books  of  science,  §  1936. 

Books,  presumption  in  favor  of  correctness,  §  1963. 

Certificate  of  purchase  or  of  location  of  lands,  §  1925. 

Charts  as,  §  1936. 

Entries  by  officers  as  evidence,  §§  1920,  1926. 

Entries  in  family  Bibles  or  boolis,  §  1870. 

Entries  in  justice's  docket  prima  facie  evidence,  §  912. 

Entries  in  official  books  prima  facie  evidence,   §  1820. 

Entries  of  decedents,  when  admissible,  §  1946. 

Execution-book  as,  §  683. 

Judgment  as,  §§  1908-1915,  1962. 

Judicial  record  defined,  §  1904. 

Judicial  record,  how  authenticated  as  evidence,  §  1905. 

Judicial  record  of  another  state,  effect  of,  §§  1913,  1921, 

1922. 
Judicial  record  of  court  of  admiralty,  effect  of,  §  1914. 
Judicial  record  of  foreign  country,  effect  of,  §  1915. 
Judicial  record  of  foreign  country,  how  authenticated, 

§  1906. 
Laws,  written  and  unwritten,  §§  1895-1899. 
Letter  admitted,  answer  may  be  given,  §  1854. 
Maps  as,    §   1936. 
Notice  to  adverse  party  to  produce  writings,  §§  1855 

1938. 
Notice  to  produce,  when  unnecessary,  §  1938. 
Notice    to    produce,    disobedience,    secondary    evidence 

§  1938. 
Notice,  refusal  to  produce  books  and  papers,  exclusion 

of  evidence,   §   1000. 
Notice,  refusal  to  produce  books  and  papers,  presump- 
tion on,  §   1000. 


«  EVIDENCE,    VII,    VIII,    IX,    X. 

_  Officers,  entries  by,  as  evidence,  §§  1920,  1926. 

Records,  officers',  are  admissible,  §  1920. 

Will,  admissible  where  action  to  quiet  title  involves 
gift  or  trust  under,  §  738. 

Writings,  accounts,  summary  of,  admissible  when, 
§  1855. 

Writings,  construction  of,  §§  1856-1866.     See  Contracts. 

Writing,  contents  of,  when  admissible,  §  1870. 

Writings,  inspection  of,  in  what  cases  may  be  de- 
manded. §  1000. 

Writing,  inspection  of  by  opposite  side,  §  2054. 

Writing,  called  for  and  inspected  need  not  be  put  in 
evidence,  §  1939. 

Writing,  if  part  admitted  all  is  admissible,  §  1854. 

Writing,  shown  to  witness,  reading  of,  §  2054. 

VIII.  Usages  and  customs. 

Local  customs  and  usages  in  actions  concerning  mining 

claims,  §  748. 
Usage,  §§  748,  1870. 
Usage,  admissible  for  what  purpose  only,  §  1870. 

IX.  Hearsay;  res  gestae;  material  objects. 
Confined  to  personal  knowledge,  §  1845. 
Declarations  a  part  of  transaction,  §  1850. 
Declarations,  res  gestae,  §  1850. 
Exhibits,  material  objects,  §  1954. 
Hearsay,  what  admissible,  §   1870, 
Objects,  material,  §  1954. 

Res  gestae,  §  1850. 

X.  Burden  of  proof. 

Affirmative  allegations  to  be  proved,  §  1869. 
Affirmative  allegations  only,  to  be  proved,   §  1869. 
Affirmative,  one  holding  must  produce  evidence,  §  1981. 
Affirmative  of  issue  to  be  proved,  §  2061. 
Burden  of  proof,  alteration  of  writing,  §  1982. 
Burden  of  proof,  in  general,  §  1981. 
Burden  of  proving  action  is  barred,  §  458. 
Burden  of  proving  jurisdiction,  where  judgment  plead- 
ed, §  456. 
Negative  allegation,  whether  to  be  proved,  §  1869. 


EVIDENCE,     XI.  WJ 

XI.     Admissibility  and  relevancy: 

1.  Generally. 

Character,  good,  evidence  of,  admissibility,  §  2053. 

Collateral  fact,  inquiry  into,  §  1868. 

Common  reputation  respecting  facts  over  thirty  years 
old,   §  1870. 

Confined  to  material  allegation,  §  1868. 

Declarations  of  third  person,  conduct  in  relation  there- 
to, §  1870. 

Facts  which  may  be  proved  on  trial,  §  1870. 

Inscriptions  as  evidence  of  common  reputation,  §  1870. 

Letter  admitted,  answer  may  be  given,  §  looi. 

Material  allegation  only,  to  be  proved,  §  1867. 

Monuments  as  evidence  of  common  reputation,  §  1870. 

Part  of  transaction  proved,  whole  admissible,  §  1854. 

Relevant,  must  be,  §  1868. 

Relevant,  what  is,  §  1870. 

Reputation,  common,  when  admissible,  §  1870. 

Third  person,  evidence  relating  to,  §  1851. 

2.  On  subject  of  handwriting. 

Ancient  writing,  comparison,  how  made,  §  1945. 
Comparison  of  handwriting,  §  1944. 
Evidence  of,   by  comparison,   §§   1944,   1945. 
Genuineness  of,  to  prove  a  writing,  §  1940, 
How  proved,   §   1943. 
Opinion   respecting,    §    1870. 

3.  On  questions  of  pedigree. 

Ancient  facts,  evidence  of  common  reputation,  §  1S70. 
Common  reputation,   §   1852. 

Declarations,  member  of  family  as  to  common  reputa- 
tion, §  1852. 
Declarations  of  member  of  family  as  to,  §  1852. 
Engravings  as  evidence  of  pedigree,  §  1870. 
Evidence  admissible  on  question  of,  §  1870. 
Evidence  of  common  reputation,  §  1870. 
Family  portraits  on  subject  of,  §  1870. 
Reputation,  common,  what  admissible  to  show,  §  1870. 
"V^Tiat  admissible  as  evidence  of,  §  1S70. 


i8  EVIDENCE,    XI,    XII. 

4.  Testimony  at  former  trial. 

Deceased  witness,  testimony  at  former  trial  §  1870. 
Jurisdiction,  testimony  of  witness  at  former  trial  who 

is  out  of.  §  1870. 
Testimony  at  former  trial,  §  1870. 

5.  Particular  facts  or  questions,  how  proved. 
Accounts,  how  proved,  §  1855. 

Aifidavits,  identity  of  nonresident  may  be  established 

by,    §    1379. 
Congress,  proceedings  of,  how  proved,  §  1918. 
Departmental  documents,  how  proved,  §  1918. 
Destroyed  writing,  how  proved,  §  1855. 
Documents,  foreign,  how  proved,  §  1918. 
Documents,  official,  manner  of  proving,  §  1918. 
Executive,  acts  of,  how  proved,  §  1918. 
Instrument,  contents  of,  how  proved,  §  1855. 
Justice's  judgment  of  sister  state,  how  proved,  §§  1921, 

1922. 
Laws,  foreign,  how  proved,  §  1902. 
Laws,    unwritten,    of    loreign    country,    how    proved, 

§  1902. 
Laws,  unwritten,  of  other  states,  how  proved,  §  1902. 
Laws,  sister  state,  how  proved,  §  1902. 
Legislature,   proceedings  of,  how  proved,   §   1918. 
Lost  writing,  how  proved,  §  1855. 
Municipalities,  proceedings  of,  how  proved,  §  1918. 
Newspaper,  publications  in,  how  proved,  §  2010. 
Public  record  of  private  writing,  how  proved,  §  1919. 
Record,  how  proved,  §  1855. 
Record,  judicial,  how  proved,  §§  1905,  1906. 
United  States  documents,  how  proved,  §  1918. 
United  States,  public  writings  of,  effect  of,  how  proved, 

§  1924. 
Writing,  how  proved  where    subscribing  witness  deny 

or  forget  execution,  §  1941. 
Writings,  lost,  how  proved,  §  1937. 
Writings,  public,  of  territories,  how  proved,  and  effect 

of,  §  1924. 
XII.     Weight   and   sufficiency  of. 
Acomplice,    testimony    to    be     viewed     with    distrust 

§  2061. 
Affirmative  allegations,  proof  of:   See  ante,  X. 


EVIDENCE,     XII,     XIII— EXCEPTION.  889 

Degree  of  certainty  required,  §  1826. 

Estimated  how,  §  2061. 

Guilt  to  be  proved  beyond  reasonable  doubt,  §  2061. 

Instruction    as    to    effect,    character,    and    weight    of, 

§  2061. 
Insufficiency  of,  as  ground  for  new  trial,  §  657. 
Jury  judges  of  effect  of,  §  2061. 

Jury,  rules  governing  in  estimating  evidence,  §  2061. 
Preponderance  of,  controls,  §  2061. 
Production   of  weaker  testimony,   effect  of,   §   2061. 
Reasonable  doubt,  §  2061. 

Rules    governing  in   weighing  testimony,    §    2061. 
Satisfactory,  will  sustain  verdict,  §  1835. 
Weight  of,  §  2061. 
Witness,  one  sufficient,   §   1844. 
Witnesses:  See  Witnesses. 

XIII.     Questions  of  practice  relating  to. 

Admissibility  of,  question  for  court,  §  2102. 

Clerk  to  take  testimony,  when,  §  1051. 

Modes  of  taking  testimony,   §  2002. 

New  trial  for  disregard  of,  §  662. 

Newly  discovered,  as  ground  for  new  trial,  §  657. 

Notice  to   produce  books  or  papers:    See  ante,  VII. 

Order  of  introducing,  §§  607,  2042. 

Order  of  proof,  how  regulated,  §  2042. 

Proceedings  to  perpetuate,   §§   2083-2089. 

Production    of,    court    may    stop    where    already    full, 

§  2044. 
Questions  of  fact,  when  for  jury,  §  2101. 
Questions  of  law,  when  for  court,  §  2102. 
Rules  of,  to  be  decided  by  court,  §  2102. 

EXCEPTION,  absence  of  party,  decision  in  deemed  except- 
ed to,  §  647. 

After  judgment,  how  settled,  §  651. 

Bill  of:  See  Appeal. 

Bill  of,  amendments  to,  §  650. 

Bill  of,  amendments  to,  service  of,  §  650. 

Bill  of,  a  part  of  record  on  appeal,  §  661. 

Bill  of,  application  for  new  trial,  when  may  be  made 
on,  §  658. 

Bill  of,  as  part  of  judgment-roll,  §  670. 


EXCEPTION. 

Bill  of,  certifying,  §  650. 

Bill  of,  delivery  to  absent  ju-dge,  §  650. 

Bill  of,  delivery  to  judge,  §  650. 

Bill  of,  filing  with  clerk,  §  650. 

Bill  of,  may  be  settled  and  signed  after  officer  or  judge 

ceases  to  be  such,  §  653. 
Bill  of,  must  contain  what,  §  650. 
Bill  of,  preparation,  manner  of,  §  650. 
Bill  of,  presenting  to  judge,  §  650. 
Bill  of,  presentation  and  settlement  on  decision  by  ju- 
dicial officer  other  than  judge,  §  653. 
Bill  of,  refusal  to  allow,  application  to  supreme  court 

to  prove  same,  §  652. 
Bill  of,  settlement  by  supreme  court,  manner  and  ef- 
fect of,  §  652. 
Bill  of,  settlement  by  referee,  §  650. 
Bill  of,  settlement,  by  officer  other  than  judge,  §  649. 
Bill  of,  settlement,  notice  of,  §  650. 
Bill  of,  settlement,  on  death,  disqualification,  absence, 

refusal  of  judge  or  officer,  §  653. 
Bill  of,  settlement,  on  motion  for  new  trial,  §  659. 
Bill  of,  settlement,  to  decision  after  judgment,  §  651. 
Bill  of,  settlement,  service  on  adverse  party,  §  650. 
Bill    of,    settlement   without   notice   to   adverse   party, 

§  650. 
Bill  of,  signature  by  judge  or  referee,  §  650. 
Bill  of,  striking  out  redundant  matter,  §  650. 
Bill  of,  to  be  signed  by  judge  and  filed  with  clerk,  §  649. 
Bill  of,  to  decision  after  judgment,  settlement  of,  §  651. 
Bills  of,  extension  of  time,  §  1054. 
Continuance,  order  refusing  deemed  excepted  to,  §  647. 
Court  commissioners'  findings,  exception  to,  how  made, 

§  645. 
Defined,  §  646. 

Demurrer,   order  sustaining  or  overruling   deemed  ex- 
cepted to,   §  647. 
Documents   on   file,   how   incorporated,    §   648. 
Filing  with  clerk,  §  649. 
Final  decision  deemed  excepted  to,  §  647. 
Form  of,  §  648. 

Form  of,  when  made  on  insufficiency  of  evidence,  §  648. 
Insufficiency     of    evidence,    on    ground     of,    requisites, 
§  648. 


EXCEPTION— EXECUTION.  8itl 

Interlocutory  order  or  decision  deemed  excepted  to, 
§   647. 

Judge  out  of  office  may  settle,  §  653. 

Matters  deemed  excepted  to,  §  647. 

Orders,  when  deemed  excepted  to,  §  647. 

Order  or  decision  from  which  appeal  lies  deemed  ex- 
cepted to,  §  647. 

Pleading,  amendment,  order  allowing  or  refusing 
deemed  excepted  to,  §  647. 

Pleading,  order  striking  out  deemed  excepted  to,  §  647. 

Referee's  finding,  to,  how  made,  §  645. 

Settlement  of,  time  for,  §§  649,  650,  659. 

Signing  by  judge  or  judicial  officer,  §  649. 

Statement  on  appeal,  §  661.     See  Statement. 

Statement  on  motion  for  new  trial:   See  New  Trial. 

Time  for,  §  646.  • 

Verdict  deemed  excepted  to,  §  647. 

What  deemed  excepted  to,  §  647. 

EXECUTION:   See   Supplementary   Proceedings. 

After  five  years.  §  C85. 

Against  the  person,  §  632. 

Any  debtor  may  pay  creditor,  §  716. 

Appeal,    restitution    where    property    sold    under,    and 

judgment  reversed,  §  957. 
Attached  property  may  be  sold  as  under,  when,  §  548. 
Attached  property,  sale  under,  §  550. 
Book  as  evidence,  §  683. 
Book,  how  kept  and  what  to  contain,  §  683. 
Claim   of  property,   bond,   claimant  may  give  and   re- 
lease property,  §  710. 
Claim  of  property,  bond,  amount  of  and  conditions  in, 

§  7101/,. 
Claim   of   property,   bond,   estimate  of  value   and   new 

bond,  §  7121/3. 
Claim  of  property,  bond,  filing  and  serving  of,  §  711. 
Claim    of   property,    bond,    justification,    approval   and 

disapproval,  §  712. 
Claim    of    property,    bond,    justification,    manner    of, 

§  718. 
Claim  of  property,   bond   of,   objections   to,   §   711^,. 
Claim    of    property,    bond,    when    becomes    effectual 

§  718M,. 


E3XBCUTION. 

Claim  of  property,  how  made,  §  689. 

Claim    of    property,    indemnity    and    undertaking    on, 

§  689. 
Contribution  among  debtors,  notice,  §   709. 
Costs,  for,  on  appeal,  §  1034. 

Costs  in  probate  proceedings,  execution  for,  §  1720. 
Damages  in  eminent  domain,  to  recover,  §  1252. 
Death,  not  to  issue  after,  §  1505. 
Death  of  party,  when  may  issue  after,  §  686. 
Decedent,    decree   for   payment   of   dehts   of,   execution 

foT,  §  1649. 
Decedent,   ju-dgment   against,   no    execution   can   issue, 

§  1505. 
Dormant  judgment,  on,  §  685, 

Eminent  domain,  to  recoTer  damages  in,  §  1252. 
Enforcing  order  by,  §  1007. 
Enforcement,  when  judgment  requires  performance  of 

particular  act,  §  G84. 
Enforcement,  when  ju-dgment  requires  sale  of  property, 

§  684. 
Executor,  against,  to  enforce  personal  liability,  §  1649. 
Executor,    judgment    against,    no    execution    to    issue, 

§  1504. 
Exempt,  what  property  is,  §  690. 

Exemption,  materials  for  building  not  subject  to  exe- 
cution, §   1196. 
Forcible  entry  and  detainer,  in,  §  1174. 
Form  of,  §  682. 

Inspection,  execution  book  open  to,  §  6S3. 
Issuance  of,  time  of,  §  681. 

Issuance,  time   of,   when   stayed   or  enjoined,   §   681. 
Issuance,  to  whom  may  issue,  §  687. 
Issuance,  to  whom  issued  when  property  required  to  be 

delivered,   §   687. 
Issuance  of,  after  five  years,  §  681. 
Issuing  to  different  counties  at  same  time,  §  687. 
Issue,  may,  to  any  sheriff,  §  687. 
Issue    of,    where    judgment    for    delivery    of    property, 

§  682. 
Issues  in  name  of  people,  §  628. 
Judgments  against  officers,  how  enforced,  §  710. 
Judgment,  manner  of  enforcing,  §  684. 
Judgment  barred  by  limitation,  §  685. 
Justice's  courts,  from,  §§  901-905.     See  Justice's  Court. 
Justice's    judgment    docketed    in    superior   court,   on, 
§  899.  • 


EXECUTION.  893 

Levied   before  death,   proceedings  on,   §   1505. 

Levy,  defendant  may  indicate  property  when,  §  691. 

Levy,  how  made,  §  691. 

Levy,  property  subject  to,  §§  688,  1196. 

Levy,  property  subject  to,  §  688. 

Levy,  writ  how  executed,  §  682. 

Levy,  property  in  hands  of    heirs,    tenants,    trustees, 

etc.,  §  682. 
Levy,  until,  property  not  affected  by,  §  688. 
Levy  to  be  made  only  on  part  of  property,  if  suflBcient, 

§  691. 
Limitation,  judgment  barred  by,  §  685. 
Limitation  of  action  against  officer  for  money  collected 

upon,  §  339. 
Limitations  of  action  against  officer  for  seizure,  §  341. 
Materials  for  building  not  subject  to,  §  1196. 
May  issue  at  same  time  to  different  counties,  §  687. 
May  issue  to  any  sheriff,  §  687. 
Money,  amount  and  kind  of,  payable  in,  §  682. 
Order,  enforcing  by,  §  1007. 

Payment  by  any  creditor,  sheriffs'  receipt,  §  716. 
Payment  in  specific  kind  of  money,  §  682. 
People,  to  issue  in  name  of,  §  682. 
Person,   against  the,    §   682. 

Person,  against  the,  after  return  unsatisfied,  §  684. 
Preferred  claims  for  wages,  §  1206. 
Prisoner,   discharge  of,   §§   1143-1154.     See  Prisoner. 
Prisoner,    plaintiff     to    advance    funds   for    support   of, 

§   1154. 
Property    in    hands    of   heirs,    tenants,   trustees,    etc., 

§  682. 
Property  subject  to,  §  688. 
Receiver,  in  aid  of,  §  564. 
Redemption  by  a  redemptioner,   §  703. 
Redemption,  judgment  creditor  may  redeem   estate  of 

decedent,   §  1505. 
Redemption  by  judgment  debtor,  §  703. 
Redemption,  certificate  of,  filing  and  recording,  §  703. 
Redemption,  notice  of,  §  703. 
Redemption,    notice   to    be   filed   with    recorder    when, 

§   703. 
Redemption  of  estate  of  decedent,  §  1505. 
Redemption  of  realty,  who  may  effect,  §  701. 
Redemption,   payment  in  kind  of  money    specified    in 

judgment,  §  704. 


EXECUTION. 

Redemption,  payments  may  be  made  to  whom,  §  704. 
Redemption,  property  subject  to,  with  what  exception, 

§   700. 
Redemption,  rents  and  profits  a  credit  on,  §  707. 
Redemption,   tender  equivalent  to  payment,   §  704. 
Redemption,   time   within   which    may   be   had,    §§   702, 

703. 
Redemption,  time,  extension  of,  where  purchaser  fails 

to  account,   §  707. 
Redemptioner,  what  he  must  do  to  redeem,  §  705. 
Redemptioner,  affidavit  by,  §  705. 
Redemptioner  must  pay  what  interest,  taxes  and  liens, 

§§  702,  703. 
Redemptioners,  who  are,  §  701. 
Rents  and   profits   from   time  of  sale   till  redemption, 

§  707. 
Rents  and  profits  from  time  of  sale  to  execution,  ac- 
counting for,  §  707. 
Rents    and    profits    from    time    of    sale    to    redemption, 

statement  of,   §   707. 
Requisites  of,   §  682. 

Return,  gold  dust  to  be  returned  as  money,   §  688. 
Return,     failure     to     make,     of     sale,    attachment    for, 

§   1575. 
Return  of,  recording  where  realty  levied  on,  §  683. 
Returnable  to  whom,  §  683. 
Returnable  when,  §  683. 

Sale,  betv>^een  what  hours  to  be  held,  §  694. 
Sale,  certificate  of,  §§  698,  699. 
Sale,    certificate    of,     filing     duplicate    with    recorder, 

§   700. 
Sale,  certificate  of  sale,  sheriff  to  give,  §  700. 
Sale,  certificate  of,  what  to  contain,   §  700. 
Sale,    damages   to    realty,    purchaser    may    recover   for, 

§  746. 
Sale,  delivery  of  property  susceptible  of  manual  deliv- 
ery,  §   698. 
Sale,   delivery   of   property  not   susceptible   of   manual 

delivery,   §  699. 
Sale,   enjoining  injury   to   property   after,    and    before 

conveyance,  §  745. 
Sale,  evicted  purchaser,  remedy  of,  §  708. 
Sale,  excess  in  proceeds,  how  disposed  of,  §  691. 
Sale,  extent  of  officer's  liability,  §  697. 
Sale,  how  conducted,   §   694. 


EXECUTION.  893 

Sale,  manner  of,  §§  693,  694. 

Sale,  notice,  how  given,  §  692. 

Sale,   notice,    penalty   for     defacing    or    taking     down, 

§    693. 
Sale,  notice  in  case  judgment  specifies  kind  of  money 

payable  in,  §  692. 
Sale,  notice  in  case  of  perishables,  §  692. 
Sale,  notice  in  case  of  personalty,  §  692. 
Sale,  notice  in  case  of  realty,  §  692. 
Sale,    notice,    without,    penalty,    §    693. 
Sale,  officer  or  deputy  not  to  purchase,  §  694. 
Sale,  order  of,  judgment  debtor  may  direct,  §  694. 
Sale,  personalty,  manner  of,  §  694. 
Sale,    property    not   susceptible    of    delivery,    certificate 

of  sale,  §  699. 
Sale,    purchaser,   failure   to    get   possession   because   of 

irregularity,  rights  of,  §  708. 
Sale,   purchaser   may   recover   damages   for   injuries   to 

realty,  §   746. 
Sales,    purchaser   not     getting     possession,     revival    of 

judgment  in  favor  of,  §  708. 
Sale,  purchaser,  rights  of  on  a  reversal  or  discharge  of 

judgment,  §  708. 
Sale,    refusal    of    purchaser    to    comply,  his  liability, 

§  3%. 
Sale,   refusal   of   purchaser  to   comply,   his   subsequent 

bid  refused,  §  696. 
Sale,  refusal  of  purchaser  to  comply,  proceedings  on, 

§  695. 
Sale,  to  be  at  public  auction,  §  694. 
Sale,  to  cease  when  sufficient  property  sold,  §   694. 
Sale,  to  be  in  separate  lots  or  parcels,  §  094. 
Sale,  what  bids  may  be  refused,  §  696. 
Sale,  what  title  passes,  §  700. 
Sale,  when  absolute,   §   700. 
Sale,  when  conveyance  to  be  made,  §  703. 
Satisfaction  of  judgment  by  return  of,  §  675. 
Sheriff's  deed,  when  purchaser  entitled  to,  §  703. 
Ships,  against,  application  of  proceeds,  §   825. 
Subrogation  by  debtor  paying,  §  709. 
Subrogation  of  surety  paying,  §  709. 
Supplementary    proceedings,    §§    714-721.     See    Supple- 
mentary Proceedings. 
Third  person,  claim  of  property  by,  §  689. 
Time  of,  after  five  years,  §  681. 


896  EXECUTION— EXECUTORS    AND    ADMINISTRATORS. 

Time  within  which  may  issue,  §  681. 

Time  within  which  may  issue,  when  stayed  or  en- 
joined, §  681. 

To  issue  in  name  of  people,  §  682. 

To  issue  to  whom,  when  concerns  real  property,  §  687. 

To  whom  may  issue,  §  687. 

To  whom  to  issue,  when  property  required  to  be  de- 
livered, §  687. 

Until  levy,  property  not  affected   by,   §  688. 

Vessels,  against,  application  of  proceeds,  §  825. 

Wages,  claim  for  preferred,  §  1206. 

Waste  may  be  restrained  until  time  to  redeem  expires, 
§  706. 

Waste,  what  is  not,  §  706. 

What  liable  to  be  seized  on,  §  688. 

What  property  exempt  from,  §  690. 

What  to  contain,  §  682. 

What  to   require,    §    682. 

Who  may  issue,  §  682. 

Whom  to  be  directed  to,  §  682. 

Writ  of,  how  executed,  §  691. 

Writ  to  require  what  of  sheriff,  §  683. 

EXECUTION-BOOK,  §  683. 

EXECUTION  OF  INSTRUMENT,  defined,  §  19^3. 

EXECUTORS   AND   ADMINISTRATORS. 

I.     Who  competent  and  entitled  to  act;    nomination; 
appointment. 

II.     Letters  testamentary  or  of  administration. 
III.     Bond    and    oath. 

IV.  Termination  of  authority;  removal;  suspension; 
renunciation. 

V.     Powers,  duties  and  liabilities;  possession  of  estate. 
VI.     Debts  of;  claims  of  against  estate;   naming  debtor 

as  executor. 
VII.     Actions  by  and  against;  actions  commenced  during 
life  of  decedent. 

VIII.     Contracts  of  decedent  for  purchase  or  sale  of  prop- 
erty. 

1.  For  purchase  of  land. 

2.  Enforcement  of  contract  to  convey  personalty. 

3.  Enforcement  of  contract  to  convey  realty. 


EXliCUTOES   AND   ADMINISTRATORS,    I.  897 

IX.  Joint  executors. 

X.  Special  administrators. 

XI.  Executors  de  son  tort. 

XII.  Accounting  and  settlement. 

XIII.  Time    to    close    administration    and    extension    of. 

XIV.  Appeals. 

XV.     Costs;     fees;     expenses;    compensation;     commis- 
sions. 
See  Estates  of  Decedents;   Public  Administrator;    Pro- 
bate Court. 

I.     Who  competent  and  entitled  to  act;   nomination;   ap- 
pointment. 

Absence  of  executor  named  from  state,  proceedings  in 
case  of,   §   1354. 

Administrator,   creditor  a^,   §   1365. 

Administrator,  guardian  of  infant  or  lunatic  as,  §  1368. 

Administrator,  infant  incompetent  as,  §   1369. 
•   Administrator,   lunatic  incompetent  as,  §  1369. 

Administrator,  married  woman  as,  §  1370. 

Administrator,  nonresident  incompetent  as,  §   1369. 

Administrator,  order  of  persons  entitled  to  be  ap- 
pointed,  §   1365. 

Administrator,  partner  as,  §  1365. 

Administrator,  persons  equally  entitled  to  act  as,  wbo 
preferred,   §  1366. 

Administrator,  male  preferred  to  female,  §  1366. 

Administrator,  whole  blood  preferred  to  half,  §  1366. 

Administrator,  who  incompetent  to  act  as,  §  1369. 

Administrator,  who  may  act  as,  §  1365. 

Administrator,  who  appointed,  when  all  others  incom- 
petent,  §  1426. 

Administrator  with  will  annexed,  appointment  of  on 
death  of  incompetency  of  all  representatives, 
§  1426. 

Administrator  with  will  annexed  when  other  property 
discovered,  §  1698. 

Appointm.ent,  certificate  of,  seal,  §  153. 

Appointment,  nuncupative  will  as  in  other  cases,  §  1346. 

Appointment  of  guardian  of  incompetent  as  administra- 
tor,  §  1368. 

Appointment,  transcript  of  court  minutes  to  be  evi- 
dence, §  1429. 

Code  sections  governing  appointment,  powers  and 
duties,   §   304. 

Code   Civil   Proc— 57. 


EXECUTORS    AND    ADMINISTRATORS,    I,    It. 

Corporation  as  executor,  §  1348. 

Corporation,  act  authorizing  to  act  as  executor,  p.  768. 

Creditor,  application  by,  for  letters,  appointment  of 
another  on  request  of  another  creditor,  §  1367. 

Drunkard,  incompetent,  §  1369. 

Executor,  who  incompetent  to  serve  as,  §  1350. 

Executrix,  married  woman  may  be  appointed  as,  §  1352. 

Incompetency  of  all  representatives,  appointment  of 
administrator,   §   1426. 

Infant  as  executor,  §§  1350,  1354. 

Infant  or  incompetent,  who  appointed  administrator 
when  appointed,   §  1368. 

Infant,  minority  of  executor,  proceedings  on,  §  1354. 

Infant  or  incompetent,  when  nominated,  guardian  ap- 
pointed  administrator,  §  1368. 

Insane  person  incompetent  as  administrator,  §  1369. 

Married  woman  may  act  as  administratrix,  §  1370. 

Nomination,  administration  granted  at  request  of  per- 
son entitled  to  letters,  §  1379. 

Nominee  of  surviving  husband  or  wife,  §  1305. 

Nonresident  as  administrator,  §  1369. 

Nuncupative  will,  executors,  manner  of  appointment, 
§   1346. 

Order  of  persons  entitled  to  administer,  §  1305. 

Preference  among  those  equally  entitled,  §§  1360,  1367. 

Who  to  act  as,  when  all  acting  are  incompetent,  §  1426. 

II.     Letters  testamentary  or  of  administration. 

Discovery  of  property  after  settlement,  issuance  of  let- 
ters, §  1698. 

Form  of  letters  of  administration,  §  1302. 

Form  of  letters  testamentary,  §  1423. 

Letters  may  be  granted  to  one  or  more,  where  several 
equally  entitled,  §  1367. 

Letters,  objections  to  issuing  to  be  heard  and  deter- 
mined, §  1351. 

Letters,  objection  to  issuing,  petition  for  letters  may 
be  filed  with,  §  1351. 

Letters  to  issue  to  party  entitled  after  hearing  allega- 
tions and  proof,  §  1375. 

Letters,  subsequent  issue  of,  after  final  settlement, 
§  1698. 

Letters,  to  issue  to  persons  named,  §  1349. 

Letters  durante  minore  aetate,  §  1354. 

Letters,  to  be  issued  to  persons  named  executors, 
§   1349. 


EXECUTORS    AND    ADMINISTRATORS,    II.  8U» 

Letters,  oath  to  be  attached  to,  §  1387. 

Letters  to  be  signed  and  sealed,  §§  1356,  13G1. 

Letters,  recording,  §   1387. 

Letters  of  administrator  to  be  filed  with  clerk,  §  1356. 

Letters  of  administration,  when  executor  absent  from 
state,  §  1354. 

Letters  of  administration,  petition  for  may  be  filed 
with  objections  to  letters  to  executor,  §  1351. 

Letters  of  administration,  examination  before  granting, 
§  1378. 

Letters  of  administration,  failure  to  apply  for,  grant  to 
others,  §  1377. 

Letters  of  administration,  form  of,  §  13G2. 

Letters  of  administration,  time  for  granting,  §  1372. 

Letters  of  administration,  what  proofs  must  be  made 
before  granting,  §  1378. 

Letters  of  administration  with  will  annexed,  form  of, 
§§  1356,  1361. 

Letters  testamentary,  form  of,  §  1360. 

Letters,  who  may  object  to  granting,  §  1351. 

Nonresident  entitled  to  letters,  identity  of,  how  estab- 
lished, §   1379. 

Petition,  executor  forfeits  right  to  letters,  on  failure 
to,  §  1301. 

Petition  for  letters  of  administration,  what  to  state, 
§  1371. 

Petition  for  letters  of  administration,  contesting,  §  1374. 

Petition  for  letters  of  administration,  hearing  of,  §  1375. 

Petition  for  letters  of  administration,  how  made,  §  1371. 

Petition  for"  letters  of  administration,  jurisdictional 
averments,  §  1371. 

Petition  for  letters  of  administration,  notice  of,  evi- 
dence of,  §  1376. 

Petition  for  letters  of  administration,  notice  of  post- 
ing,  §   1373. 

Petition  for  letters  of  administration,  notice  of  requi- 
sites, §  1373. 

Petition  for  letters  of  administration,  requisites  of 
§    1371. 

Petition  for  lettters  of  administration,  setting  for  hear- 
ing, §  1373. 

Petition  for  letters  of  administration,  entry  of  proof 
and  notice  conclusive,  §  1376. 

Subsequent  issue  of  letters  after  final  discharge,  §  1697. 

Settlement  of  estate,  discovery  of  property  after,  issu- 
ance of  letters  on,  §  1698. 

Transcript  of  court  minutes  to  be  evidence  equivalent 
to  letters,  §  1429. 


)  EXECUTORS    AND    ADMINISTRATORS,    ill. 

III.     Bond  and  oath. 

Appear  and  qualify,  must,  §  1349. 

Bond,  amount  of,  §  1388. 

Bond  to  be  ■given  by  administrator,  §  1426. 

Bond,  representative  must  give,  §  1388. 

Bond,  suspending  powers  pending  motion  to  require, 
§   1401. 

Bond,  approved,  must  be,  by  judge  of  superior  court, 
§   1393. 

Bond,  approve,  judge  may,  at  chambers,  §  166. 

Bond  of  administrator  appointed  on  death  or  incom- 
petency of  all  representatives,  §  1426. 

Bond  of  corporation  as,  §  1348. 

Bond,    certificate    of    justification    to   be  attached  to, 

§  1393. 
Bonds,  to  be  recorded  by  clerk,  §  1387. 
Bond,  citation  to  sureties  on  insuflBcient,  §  1394. 
Bond,   additional,    citation     when   security   insufficient, 

§§   1398,  1402. 

Bonds,  additional,  citation,  time  and  manner  of  ser- 
vice, §  1398. 

Bond,  additional,  application  for,  when  may  be  made. 
§  1406. 

Bond,  additional,  citation,  service  where  executor  ab- 
sconds or  cannot  be  found,  §  1398. 
Bond  of,  additional,  petition  for,  hearing,  §  1399. 

Bond  of,  additional,  petition  for,  new  bond  ordered 
when,  §  1399. 

Bond  of,  additional,  petition  for,  suspending  power  of 
representative,  §  1401. 

Bond  of,  additional,  petition  for,  when  bond  insuffi- 
cient, §  1397. 

Bond  of,  additional,  petition  for  when  sureties  failing, 
etc.,  §  1397. 

Bond,  additional,  applications  for,  orders  on  to  be  en- 
tered in  minutes,  §  1406. 

Bonds,  additional,  hearing  of  evidence,  §  1399. 

Bond,  additional,  suspending  powers  until  matter  de- 
termined, §  1401. 

Bond,  additional,  when  ordered,   §  1399. 


EXECUTORS    AND    ADMINISTRATORS,    III.  901 

Bond   of,   additional   for  sale  of  real   estate,   5   1389. 

Bond  of,  additional  security  when  bond  insufficient, 
§   1394. 

Bond  of,  additional,  when  not  required,  §  1389. 

Bond  of,  another  representative  may  sue  on,  §  1586. 

Bond  of,  citation  to  sureties  to  be  examined,  §  1394. 

Bond  of,  conditions  of,  §  1390. 

Bond  of,  examination  of  sureties,  §  1394. 

Bond  of,  failure  to  give,  devests  of  right  to  adminis- 
ter, §  1395. 

Bond  of,  form  and  requisites  of,  §  1388. 

Bond  of,  further  security,  when  ordered  without  appli- 
cation for,  §  1402. 

Bond  of,  insufficient,  citation  to  sureties,  §  1394. 

Bond  of,  justification  of  sureties,  §  1393. 

Bond  of,  liability  on,  kind  of  money,  §  1407. 

Bond,  liability  on  when  executor  resigns,  §  1427. 

Bond  of,  new,  revoking  letters  for  failure  to  give, 
§  1405. 

Bond  of,  new,  revoking  letters  for  neglect  to  give, 
§  1400. 

Bond  of,  new  sureties,  release  of  old,  §  1404. 

Bond,  sureties,  release  of,  citation,  service  of  when 
executor  absent,   §   1403. 

Bond,  requirement  of,  although  will  dispenses  with, 
§  1396. 

Bond  of,  petition  to  require,  when  will  provides  that 
none  be  given,  §  1401. 

Bond  of,  provision  in  will  that  none  shall  be  given,  ef- 
fect of,  §§  1396,  1401. 

Bond  of,  reduction  of  on  deposit  of  fund  with  corpora- 
tion, p.  770,  §  4,  Stats. 

Bond  of,  release  of  sureties,  petition  for,  §§  1403,  1404. 

Bond  of,  release  of  sureties,  citation  to  give  other  se- 
curity, §  1403. 

Bond,  right  to  administer  ceases  if  sufficient  not  given, 
§  1395. 

Bonds,  sureties,  applications  of  to  be  released,  §  1406. 

Bond  of,  separate,  when  more  than  one  representative, 
§  1391. 


J  EXECUTORS   AND    ADMINISTRATORS,    111,    IV. 

Bond  of,  several  recoveries  on,  §  1392. 

Bond  of,  stand  as  security  on  appeal,  §  938. 

Bond  of,  dispensed  with  when  will  so  provides,  §  1396. 

Corporation,  as,  oath  of,  §  1348. 

Corporation  as,  bond  of,  p.  770,  §  5,  Stats. 

Corporation  as,  qualification  of,  p.  7G8,  §  1,  Stats. 

Oath  of,  before  letters  issue,  §  1387. 

Oath  of  special  administrator,   §  1414. 

IV.  Termination  of  authority;  removal;  suspension;  re- 
nunciation. 

Death  of,  letters  of  administration  with  will  annexed 
to  be  issued,  §  1353. 

Death  of,  executor  of  not  entitled  to  letters,  §  1353. 

Death,  administration  with  will  annexed  to  be  issued, 
on,  of  executor,  §  1353. 

Marriage  of  administratrix  does  not  terminate  author- 
ity, §  1370. 

Marriage  of  executrix  does  not  terminate  authority, 
§  1352. 

Removal  for  disobedience  of  orders,  §  1721. 

Rem.oval,  when  committed  for  contempt,  §§  1588,  1721. 

Removal,  failure  to  make  return  of  sales,  §  1575. 

Removal  for  contempt,  §  1721. 

Removal,  failure  to  make  inventory  of  after-discovered 
property,  §  1451. 

Removal,  citation  to,  to  show  cause,  §  1437. 

Removal  of,  the  hearing,  attachment  to  compel  attend- 
ance, §  1440. 

Removal  of,  the  hearing,  compelling  attendance,  §  1440. 

Removal  of,  the  hearing,  examination  under  oath, 
§  1440. 

Renunciation,  failure  to  petition  for  letters  amounts 
to,  §  1301. 

Renunciation  by  executor,  appointment  of  another, 
§-1301. 

Resignation  of,  §  1427. 

Resignation  of,  accounting,  and  delivery  of  property, 
§   1427. 


EXECUTORS   AND   ADMINISTRATOKS,    IV.  S03 

Resignation  of,  revocation  of  letters  and  appointment 
of  administrator,  §  1427. 

Resignation  of,  liability  on  bond,  §  1427. 

Revocation  of  probate  of  will,  effect  on  powers  and 
duties  of,  §  1331. 

Revocation,  accounting,  for  dereliction  in,  §§  1627,  1630. 

Revocation,  account  after,   §§  1423,  1629. 

Revocation,  all  acts  before,  are  valid,  •§  1428. 

Revocation  citation  to  administrator,  §§  1384,  1385. 

Revocation,  d-jty  of  remaining  executors,  ,5  1425. 

Revocation,  failure  to  obey,  citation,  §  1437. 

Revocation,  for  contempt,  §  1721. 

Revocation,  for  failure  to  return  inventory,   §   1450. 

Revocation,  for  neglect  to  give  new  bond,  §  1405. 

Revocation,  for  failure  to  give  new  bond,  §  1400. 

Revocation,  for  failure  to  give  notice  to  creditors, 
§  1511. 

Revocation,  for  failure  to  make  return  of  sale,  §  1575. 

Revocation,  failure  to  return  account  of  sale,  §  1675. 

Revocation,  hearing  of  petition,  §  1385. 

Revocation,  how  obtained,  §  1383. 

Revocation,  notice  of,  §   1384. 

Revocation,  of  administration  on  petition  of  person  en- 
titled to  letters,  §  1385. 

Revocation  of  administration  upon  probate  of  will, 
§   1423. 

Revocation  of  letters  for  failure  to,  account,  §  1630. 

Revocation  of  letters  of  administrator,  citation  to, 
§§   1384,  1385. 

Revocation,  of  representative  resigning,  §  1427. 

Revocation,  on  proceedings  to  suspend  representative, 
§§  1437,  1440. 

Revocation,  petition  for,  §§  1383,  1384. 

Revocation,  power  of  subsequent  representative,  §  1424. 

Revocation,    prior   rights   of   relatives   entitle    them   to 

revoke  prior  letters,  §§  1383,  1386. 
Revocation,  upon  probate  of  later  will,  §  1423. 
Revocation,  when  account  shows  neglect,  etc.,  §§  1626, 

1627. 


)4  EXECUTORS   AND    ADMINISTRATORS,    IV,    V. 

Revocation,  of  all  representatives,  appointment  of  ad- 
ministrator,  §  1426. 

Revocation,  when  granted  to  one  other  than  compe- 
tent, §§  13S3,  1386. 

Revocation,  who  may  obtain,  §  1383. 

Suspension  of,  grounds  for,  §  1436. 

Suspension,  for  waste,  §  1401. 

Suspension  of,  any  interested  party  may  appear  at 
hearing,  §  1438. 

Suspension  of,  citation,  §   1437. 

Suspension,  notice,  publication  of  when  executor  ab- 
sent or  conceals  himself,  §  1439. 

Suspension  of,  executor  may  answer  or  demur  to  appli- 
cation, §  1438. 

Suspension  of,  manner  of  proceeding,   §  1436. 

Suspension  of,  notice,  §  1437. 

Suspension  of,  notice  to  absconding  representative, 
publication  of,  §  1439. 

Suspension  of,  power  of,  §  1401. 

Suspension  of,  the  hearing,  §  1438. 

Suspension  of,  the  hearing,  pleadings,  §  1438. 

Suspension  of,  the  hearing,  punishment  for  refusal  to 
answer  questions,   §   1440. 

Suspension  of,  removal  of,  on  proceedings  for,  §  1437. 

Suspension,  issues  raised  to  be  determined  by  court, 
§  1438. 

Suspension,  judge  may  suspend  at  chambers,  §  166. 

Suspension  of,  pending  petition  for  additional  bond, 
§  1401. 

Suspension  of,  pending  petition  that  executor  give 
bond,  §  1401. 

V.     Powers,  duties  and  liabilities;  possession  of  estate. 

Acts  of,  valid  until  power  revoked,  §  1428. 
Administrator   with    will    annexed,    power   of,    §§    1356, 

1424. 
Administrator    with    will    annexed,    acts    of,    effect    of, 

§   1356. 
Appraisement,  increase  or  decrease  of  estate,  effect  of, 

§  1614. 


EXECUTORS    AND    ADMINISTRATORS,     V.  aOf. 

Appraisement,   rights   and   liabilities  on   sale   for  more 

or  less  than,  §  1614. 
Authority  of  administrators  with  will  annexed,  §  1356. 
Cannot  purchase  claims  against  estate,   §   1617. 
Cannot  purchase  property  of  estate,   §   1576. 
Chargeable    with     estate    at    value    of    appraisement, 

§   1613. 
Chargeable  with  interest,  profit  and  income  of  estate, 

§  1613. 
Claim  against  estate,  not  to  purchase,  §  1617. 
Code  sections  governing  powers  and  duties,  §  304. 
Compounding  debt  by,   §  1588. 
Compromise  of  debt  by,   §   1788. 
Corporation  acting  as  executor,  powers  and  liabilities, 

p.  771,  §§  6  et  seq..   Stats. 
Corporation,  deposit  of  funds  with  corporation,  p.  769, 

§  2,  Stats. 
Debts,  uncollected,  liability  for,  §  1615. 
Depreciation   of   estate   without  fault,   executor  not  to 

lose  by,  §  1614. 
Executor,   power  of,   when   appointed  after  revocation 

of  prior  letters,   §   1424. 
Increase  or  decrease  of  estate,  effect  of,  §  1614. 
Investment  of   funds    pending  settlement,    §   1640. 
Investment  of  funds,  in  what  securities,  §  1640. 
Investment   of  funds,    procedure    in    obtaining    order, 

§  1640. 
Lease  of  estate  by,  §  1579. 

Liability  for  failure  to  give  notice  to  creditors,  §  1650. 
Liability  of,  statute  of  frauds,  §  1612. 
Liability  on  debts  after  decree  of  payment,  §  1649. 
Liability  for  selling  for  less  than  appraisement,  §  1614. 
Liability  for  uncollected  debts,  §  1615. 
Liability,  on  promise  to   answer    out    of    own    estate, 

§  1612. 
Liable,    personally,     to     creditor     for     allowed     claim, 

§   1649. 
Mortgage  of  estate  by,  §  1578- 


3      EXECUTORS  AND  ADMINISTRATORS,  V,  VI.  VII. 

Not  to  profit  by  increase  of  estate,  §  1614. 

Possession  of  estate,  to  talie,  §  1581. 

Possession  of,   is  possession  of  heirs  or  devisees,   for 

what  purpose,  §  1581. 
Possession   of   heirs  or  devisees  subject  to   possession 

of,  §  1581. 
Possession,  heirs  or  devisees  may  sue  for,  §  1452. 
Possession,  heirs  may  sue  for    jointly    with    executor, 

§   1452. 
Possession,  right  of  heirs. and  devisees  to,  §  1581. 
Possession  by,  of  personal  and  real  estate,  entitled  to, 

§  1452. 
Possession    of   estate,    recovery    of,    by    representative, 

§   1452. 

Possession  of  real  estate,  when  to  be  delivered  to  heirs 

or  devisees,  §  1453. 
Proiit  by  increase  of  estate,  not  to,  §  1614. 
Property  to  be  kept  in  good  repair,  §  1452. 
Rents  and  profits,  to  receive,  §  1452. 
Repair  of  buildings,  duty  of  executor  as  to,  §  1452. 
Territorial  limits  of  authority,  §  1913. 
To  collect  debts  due  estate,  §  1581. 

VI.  Debts  of;   claims  of  against  estate;    naming   debtor 

as  executor. 

Attorneys'  fees  in  suit  by  executor  against,  §  1510. 
Claims  of,  against  estate,   presentation  and  allowance 
of,  §  1510. 

Claims   of,   against  estate,   rejection  of,    suit    thereon, 
costs,  §  1510. 

Costs  and  attorney's  fee  in  suit  by  executor  on  claim 

against,  §  1510. 
Debtor,  effect  of  naming  as  executor,  §  1447. 
Discharge  or  bequest  of  debt  due  by  executor,  §   1448. 

VII.  Actions  by  and  against;  actions  commenced  during 

life   of   decedent.  "^ 

Action  by,   within  what  time  may  be  brought,  §§  353, 
355. 


EXECUTORS    AND    ADMINISTRATORS,    VII.  90J 

Actions  against,  within  what  time  may  be  brought, 
§  353. 

Actions  on  contracts  may  be  maintained  by  or  against, 
§  1582. 

Action  to  determine  adverse  claim  lies  by  or  against, 
§  1582. 

Contest  of  will:    See  Wills,  VIII,   IX. 
Conversion,  action  for,  §  1583. 

Conversion  of  decedent,  action  for,  against  represen- 
tative, §  1584. 

Costs  in  action  by  or  against  executors,  chargeable 
against,   §   1031. 

Death  caused  by  negligence,  may  sue  for,  §  377. 

Death,  wrongful,  may  sue  for,  §  377. 

Ejectment  lies  by  and  against,  §  1582. 

Execution  after  death  of  party,  executor  may  have  is- 
sued, §  686. 

Execution  against,  to  enforce  personal  liability  on 
debts  of  estate,  §  1649. 

Fraudulent  conveyance  by  decedent,  action  by,  to  re- 
cover property,   §   1589. 

Fraudulent  conveyance,  executor  not  bound  to  sue  for, 
§   1590. 

Fraudulent  conveyance,  creditor  asking  executor  to  set 
aside,  to  advance  costs,  §  1590. 

Fraudulent  conveyance,  recovery  of  property,  §§  1589, 
1590. 

Fraudulent  conveyance,  recovery  of,  sale  of,  and  dis- 
position of  proceeds,  §  1591. 

Fraudulent  conveyance  of  decedent,  recovery  by  rep- 
resentative, §§  1589-1591. 

Judgment  after  death,  how  paid,  §  669. 

Judgment  against,  effect  of,  §  1504. 

Judgment  against  executor,  transcript  of  to  be  filed 
among  papers,   §   1504. 

Judgment  against  executor,  no  execution  to  issue  on, 
§  1504. 

Jud'gment  against  executor,  creates  no  lien  on,  §  1504. 

Limitation  of  action  by  or  against,  §§  353,  355. 


!  EXECUTORS    AND    ADMINISTRATORS,     VII,     VIII. 

May  sue  without' joining  persons  beneficially  inter- 
ested, §  369. 

Negligence  causing  death,  may  sue  for,  §  377. 

Parties,  representatives  not  qualifying  need  not  be 
made,  §  1587. 

Partition,  possession  of  executors  is  possession  of  heirs 
for  purpose  of,  §  1581. 

Partner,  surviving,  failure  to  account,  action  to  com- 
pel,  §   1585. 

Quieting  title,   action  lies  for  purpose  of,  §  1582. 

Quieting  title,  possession  of  representatives  for  pur- 
pose of,  §  1581. 

Quieting  title,  possession  of  executors  is  possession  of 
heirs  for  purpose  of,  §  1581. 

Quiet  title,  action  to,  lies  by  or  against,  §  1582. 

Quiet  title,  heirs  or  devisees  may  sue  to,  §   1452. 

Quiet  title,  heirs  may  join  with  representatives  to, 
§   1452. 

Restraining  executor  during  proceedings  to  establish 
lost  will,  §  1341. 

Substitution  of,  as  party,  §  385. 

Trespass,  action  for,  §  1583. 

Trespass  of  decedent,  action  for,  against  representa- 
tive, §  1584. 

Trover,  action  of  by  or  against,  §§  1583,  1584. 

Waste,  action  for,  §  1583. 

Waste  of  decedent,  action  for,  against  representative, 
§  1584. 

VIII.     Contracts  of  decedent  for  purchase  or  sale  of  land: 

1.  For  purchase  of  land. 

Contract  for  purchase  of  land  by  decedent,  sale  of, 
§§   1565-1568. 

Contract  for  purchase  of  land,  executor  to  assign  on 
confirmation  of  sale,  §  1568. 

Contract  of  decedent  for  purchase  of  land,  bond  of  pur- 
chaser, §§  1566,  1567. 

Contract  for  purchase  of  land,  sale  of,  conditions  of 
purchase,   §  1566. 

2.  Enforcement  of  contract  for  sale  of  personalty. 
Conveyance,  effect  of,   §  1603. 

Court  may  authorize  and  direct  transfer,  §  1597. 
Decree,  effect  of,  §  1601. 


EXECUTORS    AND    ADMINISTRATORS,     Vin,    IX.  ItUU 

Decree  for  transfer,  effect  of  recording  certified  copy, 

§   1604. 
Decree  may  direct  surrender  of  possession,  §  1607. 
Decree  ordering  transfer,  when  made,  §§  1600,  1601. 
Decree  prima  facie  evidence,  §  1601. 
Decree,   recording   does   not   prevent    court    enforcing, 

§  1605. 
Dismissal,  right  to  sue  for  specific  performance,  §  1602, 
Dismissal  where  case  doubtful,  §  1602. 
Hearing  and  contest  and   proceedings  on,   §  1599. 
Hearing,  notice  of  and  publication  of,  §  1598. 
Hearing,  time  and  place  of,  §  1598. 
Petition  for  transfer,  §  1598. 
Proceedings  where  person  entitled  to  transfer  is  dead, 

§  1606. 

3.    Enforcement  of  contract  to  convey  realty. 

Conveyance,  effect  of,  §  1603. 

Court  may  authorize  and  direct  conveyance,  §  1597. 

Decree  ordering  conveyance  when  made,  §§  1600,  1601. 

Decree  may  direct  surrender  of  possession,  §  1607. 

Decree,  effect  of,  §  1601. 

Decree,  effect  of  recording  certified  copy,  §  1604. 

Decree,  prima  facie  evidence,  §  1601. 

Decree,  recording  certified  copy  in  county  where  land 
is,  §  1601. 

Decree,  recording,  does  not  prevent  court  from  enforc- 
ing, §  1605. 

Dismissal,  where  case  doubtful,  §  1602. 

Dismissal,  right  to  sue  for  specific  performance,  §  1602. 

Hearing  and  contest,  and  proceedings  on,  §  1599. 

Hearing,  notice  of  and  publication  of,  §  1598. 

Hearing,  time  and  place  of,  §  1598. 

Petition  for  conveyance,   §   1598. 

Proceedings  where  person  entitled  to  conveyance  is 
dead,  §  1606. 

IX.     Joint  executors. 

Acts  of,  portion  of  valid,  §  1355. 

Executor  remaining  when  colleagues  disqualified,  du- 
ties of,   §   1425. 

Less  than  whole  number  of,  may  act,  §  1355. 

Majority,  acts  of,  are  valid,  §  1355. 

Two  executors,  acts  of  one,  when  effectual,  §  1355. 

Where  all  not  appointed  those  appointed  have  full  au- 
thority, §  1355. 


wo  EXECUTORS    AND    ADMINISTRATORS,    X,    XI,    Xll. 

X.  Special  administrators. 

Account  of,  §  1417. 

Appeal,  none  from  appointment,   §   1413. 

Appointment  of,  time  and  manner  of,  §  1412. 

Appointment  of,  on  resignation  of  executor  or  admin- 
istrator, §  1427. 

Bond  of,  §  1414. 

Claims,  special  administrator  not  liable  to  actions  on, 
§  1415. 

Delivery  of  property  to  successor,  §  1416. 

Duties  of,  §  1415. 

Issue  of  letters  to,  §  1412. 

Judge  may  issue  letters  at  chambers,  §  166. 

Liabilities  of,  §  1415. 

Notice  not  necessary,  §  1412. 

Not  liable  to  creditor  on  claim,  §  1415, 

No   notice   of  appointment,   §    1412. 

Oath    of,'    §    1414. 

Powers  of,  §§  1411,  1415. 

Powers  of,  cease  when  letters  testamentary  or  of  ad- 
ministration issue,   §   1416. 

Preference  to  persons  entitled  to  letters,  §  1413. 

Suit  begun  by,  §  1416. 

Suits  by  and  against,  §  1415. 

When  may  be  appointed,  §  1411. 

XI.  Executors  de  son  tort. 

De  son  tort,  §  1428. 
Liability  as,  §  1428. 

XII.  Accounting   and   settlement. 

Account  of,  after  authority  revoked,  §  1629. 

Account  of,  after  letters  revoked,  §  1423. 

Account,  allowance  of,  conclusiveness  of,  §  1637. 

Account,  at  expiration  of  term,  §  1628. 

Account,  at  expiration  of  term,  attachment  to  compel, 

§  1628. 
Account,  attachment  for  disobeying  citation  to  account, 

§  1627. 
Account,  attachment  to  compel,  citation  to  issue  before, 

§  1628. 
Account,  citation  to  executor  to  render,  when  issued, 

§§  1623,  1625. 
Account,    citing   persons   intrusted    with    estate  to,   on 

oath,  §  1461. 


EXECUTORS     AND     ADMINISTRATORS,     XII.  Ull 

Account,  debts  presented  ajid  allowed  to  be  exhibited, 
§  1628. 

Account,  failure  to  render,  citation,  §  1G23. 

Account,  final,  when  to  be  made,  §  1652. 

Account,  increase  or  decrease  of  estate,  effect  of, 
§  1614. 

Account,  may  be  examined  under  oath,  §  1631. 

Account  may  be  received  at  chambers,  §  166. 

Account,  objections  to,  and  contest  of,  §  1635. 

Account,  objections  to,  examination  of  executor,  §  1626. 

Account,  on  final  distribution,  §  1665. 

Account,  payment  of  debts  without  affidavit,  and  al- 
lowance, §  1632. 

Account,  petition  that  executor  be  required  to  render, 
who  may  file,  §  1624. 

Account,  revoking  letters  for  dereliction  in,  §§  1627, 
1630. 

Account,  time  to  render,  §§  1622,  1628. 

Account,  to  show  what,  §§  1622,  1628. 

Account,  vouchers  for  items  less  than  twenty  dollars, 
§  1632. 

Account,  vouchers  for  items,  when  accepted,  §  1632. 

Account,  vouchers  to  remain  in  court,  §  1631. 

Account,  vouchers  to  support  claim,  may  require, 
§  1494. 

Account,    voucher,  withdrawal   of,   §   1631. 

Account,  voucher,  lost,  proof  of  payment,  §  1631. 

Account,  when  may  be  required.  §  1622. 

Account,  who  may  contest,  §  1626. 

Account,  who  may  require,  §  1622. 

Account,  special  administrator,  §   1417. 

Accounting,  sale  for  more  than  appraisement,  §  1614. 

Chargeable,  with  all  of  estate,  §  1613. 

Claim  against  estate,  paying  for  less  than  its  value, 
allowance  to,  §  1617. 

Death  of,  accounts  how  settled,  §  1639. 

Death  of,  successor  may  compel  representatives  to  ac- 
count, §   1639. 

Discharge  of,  from  liability,  decree  of,  when  to  be 
made,  §  1697. 

Settlement,  account,  when  regarded  as  fianl,  §  1647. 

Settlement,  appointing  the  day,   §   1633. 

Settlement,  apportionment  where  funds  insufficient  to 
meet  debts,  §  1647.  ~ 

Settlement,  conclusiveness  of,  §  1637. 


912    EXECUTORS   AND    ADMINISTRATORS,    XII,    XIII,    XIV,    XV. 

Settlement,  contest  of  claims,  §  1636. 

Settlement,  extension  of  time  for  final  account,  8  1651. 

Settlement,  hearing,  postponement  of,  §  1636. 

Settlement,  final,  notice,  §  1653. 

Settlement,  final,  and  discharge,  §  1697. 

Settlement,  hearing,  §  1636. 

Settlement,  heirs  may  contest  all  matters,  §  1G36. 

Settlement,  neglect  to  r^der  final  account,  proceed- 
ings to  compel,  §  1653. 

Settlement,  notice  of.  §§  1633,  1634. 

Settlement,  notice  of,  further,  §  1633. 

Settlement,  notice,  decree  must  show  proof  was  made, 
§  1638. 

Settlement,  notice,  decree  to  show  proof  made,  §  1638, 

Settlement,  on  final   distribution,   §   1665. 

Settlement,  order  for  payment  of  debts,  and  discharge 
of  representative,   §   1647. 

Settlement,  final  account,  partition  and  distribution  at 
same  time,  §  1634. 

Settlement,  proof  of  notice,  necessary  before,  §   1638. 

Settlement,  reference  of,  §  1636. 

Settlement,  when  conclusive,  and  when  not,  §  1637. 

Settlement,  when  final  to  be  made,  §  1652. 

XIII.  Time  to  close  administration,  and  extension  of. 

Continuance  of  time  for  administration,  where  will  puts 
limitation  thereon,  §  1670. 

Discovery  of  property  after  settlement,  issuance  of  let- 
ters, §  1698. 

XIV.  Appeals. 

Appeal  from  appointment  of  special  administrator  does 
not  lie,  §  1413. 

Appeal  lies  from  what  orders  respecting,  §  693. 

Dispensing  with  security,  §  946. 

Oflicial  bond,  sufficient,  §  965. 

Orders  relating  to  issuing,  refusing  to  issue  or  revok- 
ing letters   appealable,   §   963. 

Reversal  of  order  apointing,  validity  of  acts,  §  966. 

XV.  Costs;  fees;  expenses;  compensation;  commissions. 

Allowances,  attorney's  fee,   §§   1616,  1619. 
Allowances,  necessary  expenses,  §  1616. 
Allowances,  extra,  §  1618. 
Attorneys'  fees,  allowance  and  rate,  §§  1616,  1619. 


EXECUTORS,    ETC.,    XV— FACTS.  ai3 

Attorneys'  fees,  appeal  from  order  allowing,  §  1616. 

Commissions  and  allowances  of,  §  1618. 

Commissions,  where  estate  distributed  in  kind,  §  1618. 

Compensation,   contract   with    heirs,   etc.,   for    higher, 
§  1618. 

Compensation,  extra  allowance,  when  made,  §  1618. 

Compensation,     extra     allowance,     limitations     upon, 
§   1618. 

Compensation,  provision  therefor  in  will,  §§  1616,  1617. 

Corporation  acting  as  executor,  compensation  of,  p.  768, 
§  1,.  Stats. 

Costs,  allowance  of,  to,  §  1509. 

Costs,  individually  liable  for,  §  1509. 

Expenses  in  care  and  management,  allowance  of,  §  1616. 

Expenses  of  administration,  executor  may  retain,  §  1646. 

Extra  allowance,  power  to  make,  §  1618. 

Public  administrators,   compensation   and   allowance,    § 
1618. 
EXEMPLARY  DAMAGES:   See  Damages. 
EXEMPTION  from  jury  duty,  §  200. 

From  jury  duty,  aflidavit,  §  202. 

Judgment  against  officers,  how  enforced,  §  710. 

What  property  exempt  from  execution,  §  690, 
EXHIBITS.     Material  objects,  §  1954. 
EXONERATION  of  bail,  §§  488,  489,  491. 
EXPERT  TESTIMONY:   See  Witnesses. 
EXPRESS  AGENT  exempt  from  jury  duty,  §  200. 
EXTENSION  OF  TIME,  in  general,  §  1054. 

FACTS,    ancient,    evidence    of   common    reputation    as    to, 

§  1870. 
Collateral,  inquiry  into,  §  18G8. 
Conclusions  of   law   not   supported   by   finding  of  fact 

setting  aside  judgment  for,  §  6C3. 
Degree  of  certainty  required  to  establish,  §  1826. 
Errors  in,  setting  aside  judgment  for,  §  663. 
Findings  of:   See  Findings. 
Insufficiency  of,  ground  for  demurrer,  §  430. 
Issue  of,  how  it  arises,   §  590. 
Issues  of,  by  whom  tried,  §  592.  . 
Jury  as  judges  of,  §  2101. 

Of  which  court  will  take  judicial  notice,  §  1875. 
Questions  of,  to  be  tried  by  jury,  §  2101. 
Service  of  summons  by  person  other  than  sheriff,  fee 

for,  p.  762,  Stats. 

Code   Civil   Proc— 5J. 


914  FACTS— FINDINGS. 

Special  issues  not  made  by  pleadings,  how  tried,  §  309. 

To  be  stated  in  complaint,  §  42G. 

What  facts  may  be  proved  on  trial,  §  1870. 

When  general  or  special  may  be  given,  §  625. 

FALSE  IMPRISONMENT,  limitation  of  action  for,  §  340. 
FARMER,  property  of,  exempt  from  execution,  §  690. 
FAMILY    BIBLES,   entries   in,   as   evidence,    §   1870. 
FATHER:    See  Parent  and  Child. 
FEDERAL,  judgment,  limitation  of  action  on,  §  336. 
FEES  chargeable  to  estates  in  hands  of  public  administra- 
tor, when  and  by  whom  paid,  §  1741. 
Court  commissioner's,  §  259. 
Clerk's,  on  change  of  venue,  §  1760. 
Depositions  out  of   state   on  oral   interrogatories,   fees 

and  mileage  of  parties,  §  2025%. 
Justice's   court,    in,    §    91. 
Justices'  courts,  in,  collection,  report  and  payment  into 

treasury,  §  103. 
Notice   of   completion    of     building,    fee    for   recording, 

§  1187. 
Of  attorney,  how  to  be  paid,  §  1021. 
OflQcer's,  when   proceedings  stayed  on  appeal  to  supe- 
rior court,   §   979. 
Official  reporter's,    §    274. 
Payment  of  in  justice's  court,  §  91. 
Recording  claim  of  lien,  for,  §  1189. 
Referees',  §§  768,  1028,  1508. 
Venue,  on  change,  §  1760. 
Witness',  §  1987. 
FEMININE,  masculine,  includes,  §  17. 
FENCES,  eminent  domain,  §§  1248,  1251,  1257. 
FERRY,  keeper  of,  exempt  from  jury  duty,  §  200. 
FICTITIOUS  NAME,  suing  party  by,  §  474. 
FIDUCIARY  RELATION,  judgment  for  money  received  in, 

payable  in  same  kind  of  money,  §  667. 
FIGURES  may  be  expressed  by  figures  or  numerals,  §  186. 
FINDINGS:    See  Court  Commissioners,  Reference. 
Commissioners,  effect  and  force  of,  §  644. 
Commissioners,  judgment  on,  §  644. 
Conclusions  of  law  inconsistent  with,  vacation  of  judg- 
ment, §  663. 
Conclusions  of  law  not  supported  by  findings  of  fact, 
setting  aside  judgment  for,  §  663. 


FINDINGS— FORCIBLE    ENTR'S    AND    DETAINER.  9l5 

Errors  in,  setting  aside  judgment  for,  §  663. 

Judgment-roll,  as  part  of,  §  G70. 

Must  be  in  writing  and  filed  within  thirty  days,  §  632. 

Notice  of  motion   to  set  aside  judgment  for  errors  in, 
how  made,  and  hearing  of,  §  6G3^. 

Of  fact  may  be  waived,  how,  §  634. 

Of  fact  and   conclusions   of  law  must  be  stated  sepa- 
rately, §  633. 

Referee's,  effect  and  force  of,  §  644. 

Referee's,  how  excepted  to  and  reviewed,  §   645. 

Refei-ee's  judgment  on,  §  044. 

Referee's,  must  state  conclusions  of  law  and  fact  sepa- 
rately, §  643. 

Referees  to  report  within  twenty  days,  §  643. 

Signing  of,  constitutes  decision,  §  1033. 

Waived  by  consent  in  writing,  §  034. 

Waived  by  failure  to  appear,  §  634. 

Waived  by  oral  consent  in  court,  §  634. 
FINE:    See  Penalty. 

Arrest  for,  in  justice's  court,  §  801. 

Arrest  in  action  for,  §  479. 

Claim  and  delivery,   affidavit  in  relation  to,  §  510. 

Contempt,  for,  §  1218. 

Contempt,  for,  before  justice  of  peace,  §  909. 

Costs  of  cause,  in  action  involving,  §  1022. 

Juror,  for  failure  to  attend,  §  238. 

Justice's  court,  recovery  in,  §  112. 

Mandamus,  for  disobeying,  §  1097. 

Police  court,  violation  of  ordinance,  §  932. 

Public  administrator,  subject  to,  for  failure  to  account, 
§  1744. 

Transmitting  papers  on  appeal   to  superior  court,  for 
not,  §  977. 

Usurpation  of  office,  for,  §  809. 
FIRE  COMPANY,  apparatus  pertaining  to,  exempt,  §  690. 
FIRE  DEPARTMENT.     Actions  for  damages  or  on  contract 
to  be  brought  against  city,  §  390. 

Apparatus  of,   exemption  of,   §   090. 

Members  of   department   cannot   be   sued   for   damages 
or  on  contract,  §  390. 

Members  of,  exempt  from  jury  duty,  §  200. 
FISHERMAN,  what  property  of,   exempt,   §   690. 
FORCIBLE  ENTRY  AND  DETAINER,  answer  in,  §  1170. 

Answer  to  be  verified,  §  1175. 

Appeal  from  judgment,  effect  of,  §  1176. 

Appeal  from  judgment,  how  taken,  §  1178. 


FORCIBLE    ENTRY    AND    DETAINER. 

Appeal  in,  Jurisdiction  of  supreme  court,  §  52.  , 

Appeals,  provisions  relating  to,  apply  in,  §  1178. 

Appearance  of  defendant,  §  1170. 

Appearance,  failure  to  make,  default  judgment,  §  1169. 

Arrest,   §  1168. 

Assigning  or  subletting,  effect  of,  §  1161. 

Complaint,  amendment  of,  §  1173. 

Complaint,  amendment  to,  terms  not  imposed,  §  1173. 

Complaint,  requisites  of,   §  1166. 

Complaint  to  be  verified,  §§  1166,  1175. 

Complaint  to  set  forth  what,  §  1166. 

Conditions  and  covenants,  breach  and  performance  of, 
§  1161. 

Conditions    and     covenants,    subtenant    may   perform, 
§  1161. 

Continuance,  §  1173. 

Costs,  §  1174. 

Coverture  not  a  defense,  §  1164. 

Damages,  amount  of,  §  1174. 

Damages,  treble  in,   §  735. 

Default  judgment,  §  1169. 

Defendant  may  show  what  in  defense,  §  1172. 

Demurrer,   §   1170. 

Evidence,  what  defendant  may  show  in  defense,  §  1172. 

Evidence,  §  1172. 

Evidence,  showing  required  of  plaintiff,  §  1172. 

Execution  on  judgment,  §  1174. 

Forcible  detainer,  what  constitutes,  §  1160. 

Forcible  detainer,    who  is  occupant,  §  1160. 

Forcible  entry,  what  constitutes,  §  1159. 

Forfeiture    of    lease,     proceedings    for   relief   against, 
§  1179. 

Forfeiture  of  lease,  who  may  apply  for  relief  against, 
§  1179. 

Forfeiture,  relieving  against,  §  1179. 

Forfeiture,  saving  lease  from  by  performance,  §  1161. 

Holding  over  of  agricultural  land,  effect  of,  §  1161. 

Judgment,  enforcement  of,  §  1174. 

Judgment,  generally,  §  1174. 

Judgment  binds  all  entering  under  tenant,  §  1164. 

Judgment,  nature  and  amount  of,  §  1174. 

Judgment    satisfied    by    interested    party    paying    dam- 
ages, §  1174. 
Jurisdiction,  concurrent,  of  superior  and  justice's  court. 

§  1163. 
Jurisdiction  in  cases  of,  §§  76,  113. 
Jurisdiction  of  justice's  court,  §§  113,  838. 


FORB3CLOSURE   OF   MORTGAGE.  BIT 

Jurisdiction  of  superior  court,  §  1163. 

Jury,  liow  formed,  §  1171. 

Jury  trial,  §  1171. 

Justice's  court,  Jurisdiction  of,  §§  713,  838. 

Married  woman,  execution,  enforcement  of,  §  1164. 

New  trial,  provisions  relating  to  apply,  §  1178. 

Notice,  service  of,  §§  1161,  1162. 

Notice,  failure  to  serve  on  subtenant,  no  defense, 
§   1164. 

Parties,  §§  1164,  1165. 

Parties,  nonjoinder,  judgment  to  be  rendered  against 
party  serve'd,  §  1164. 

Parties,  nonjoinder,  nonsuit  not  to  be  granted,  §  1164. 

Parties,  nonjoinder,  proceedings  not  to  abate,  §  1164. 

Practice,  rules  of,  §  1177. 

Restitution  of  the  premises,  §  1174. 

Subletting  terminates  tenancy,  §  1161. 

Summons,  alias,  in,  §  1167. 

Summons,  requisites  of,  §  1167. 

Summons,  return  of,  §  1167. 

Summons,  return  of,  new  summons,  §  1167. 

Summons,  service  of,  §  1167. 

Summons,  time  of  return  of,  §  1166. 

Summons,  to  whom  directed,  §  1167. 

Summons,  when  to  issue,  §  1166. 

Tenant  may  bring  proceedings  against  subtenant, 
§  1161. 

Tenant  holding  over,  rights  of,  §  1161. 

Treble  damages  in,  §  735. 

Unlawful  detainer,  notice  to  tenant,  §  1161. 

Unlawful  detainer,  notice  to  tenant,  service  of,  §§  1161, 
1162. 

Unlawful  detainer,  who  guilty  of,  §  1161. 

Unlawful  detainer,  who  was  guilty  of,  §  1161. 

Unlawful   detainer  by   subtenant,  §   1161. 

Unlawful  detainer  by  subtenant,  proceedings  by  tenant, 
§  1161. 

Unlawful  detainer,  saving  lease  from  forfeiture  by  per- 
formance, §  1161. 

Verdict,  §  1174. 

Verification  of  pleadings,  §  1175. 

Waste,  committing,  terminates  tenancy,  §  1161. 

FORECLOSURE  OF  MORTGAGE.     Appeal  lies  from  inter- 
locutory judgment  in  action  to  redeem,  §  968. 
Attorneys'  fees,  §  726. 
But  one  action  for,  §  726. 


FORECLOSURE    OF   MORTGAGE. 

Chattel    mortgage,    of,    undertaking    on    appeal    from, 

§  943. 
Commissioner,  §  726. 
Commissioner,  compensation  of,   §  729. 
Commissioner,  conduct  of  sale,  §   726. 
Commissioner,    death,   disqualification,  absence  of,  eli- 
sor, §  726. 
Commissioner,  oath  and  undertaking  of,  §   729. 
Commissioner,  powers  of,  §  726. 
Commissioner,  report  of,  force  of,  §  729. 
Commissioner,  report  of  to  contain  what,  §  729. 
Commissioner,  time  to  file  report,  §  729. 
Costs,  §  726. 
Debt  falling  due  at  different  times,  proceedings  in  case 

of,  §  728. 
Decedent's  estate,  •deficiency  judgment,  §  1578, 
Decedent's  estate,   mortgage  of,   §   1578. 
Decedent's  estate,  redemption,   §   1505. 
Deficiency,  personal  liability  for,  §  726. 
Deficiency  judgment,  §  726. 

Deficiency  judgment,   estate   of   decedent,   §   1578. 
Elisor  to  sell,  oath  and  undertaking  of,  §  726. 
Exclusive  remedy,   §   726. 

Injunction  to  prevent  injury  to  property,  §  745. 

Installments,  §  728. 

Interlocutory  judgment  in  action  to  redeem,  time  for 
appeal,   §  939. 

Judgment    creditor    may    redeem    estate    of    decedent, 
§  1505. 

Lis  pendens,  filing,  §  409. 

Parties,  who  need  not  be  made,  §  726. 

Place  of  trial,  §  392. 

Pleading,  written  instruments,  §§  447-449. 

Proceedings,  in  general,  §  726. 

Proceedings   when    debt   falls    due   at   different   times, 
§  728. 

Receiver,  appointment  of,  §  564. 

Redemption,   note   of   record    of   mortgage   to   be   pro- 
duced, 705. 

RcKlemption  of  estate  of  decedent,  §  1505. 

Sale,  manner  of,  §  726. 

Surplus,  disposition  of,  §  727. 

Surplus  money  to  be  deposited  in  court,  §  727. 

Undertaking  to  stay,  on  appeal,  §  945. 

Unrecorded  conveyances  and  encumbrances,  §  726. 

Waste,  enjoining,  §  745. 


FOREIGN— FORGKRY.  ai9 

FOREIGN   language,  instrument    in,  experts    may    testify, 
§  18C3. 
Official  documents,  how  proved,  §  1918. 

FOREIGN  CORPORATION,  security  for  costs,  §  1036. 
Service  on,  §  411. 
Summons,  publication,  §§  412,  413. 

FOREIGNER:    See  Aliens. 

FOREIGN  JUDGMENTS,    conclusiveness  of,    general    rule, 

§  191.5. 
Copy     of    foreign     judicial     record,    when    admissible, 

§  1907. 
Judgment    of    court    of    admiralty,    conclusiveness    of 

§  1914. 
Judicial  record  of  foreign  country,  how  proved,  §  1906. 
Sister  state,  effect  of  judicial  record  of,  §  1913. 

FOREIGN    LAWS,    books    containing,    presumed    correct, 

§  1900. 
How  proved,  §§  1901,  1902. 
Presumption   as  to  books   containing  reports  of  cases 

adjudged,  §  1963. 
Statutes  of  limitations,  §  301. 
Unwritten,  how  proved,  §  1902. 

FOREIGN  RESIDENT,  summons,  how  served  on,  §  412. 

FOREIGN   SEAL,  effect  of,   §   1931. 

FOREIGN  WILLS,  probate  of:    See  Wills,  X. 

FORFEITURE.     Executor  failing  to    petition    for    letters 
§  1301. 
Justice's  court,  recovery  of  in,  §  112. 
Lease,  of,  §§  1161,  1179.     See  Landlord  and  Tenant. 
Limitation  of  action  on,  §§  33S,  340. 
Limitation  of  action   to   recover  from  stockholders  or 

directors,  §  359. 
Mechanic's  lien,  of,  §  1202. 
Of  lease,  relief  against,  §  1179. 
On  sale  under  execution,  v.ithout  notice,  §  693. 
Place  of  trial  in  action  for,  §  393. 
Venue  of  action  to  recover,  §  393. 

FORGERY,    limitations     in    actions    against   bank   paying 
forged  or  raised  check,  §  340. 


920  FORMS   OF   ACTION-FRESNO   COUNTY. 

FORMS  OF  ACTION.     But  one  form,  §  307. 

FORMS.     Notice  of  hearing  in  justice's  court,  §  850. 
Satisfaction  of  mortgage,  form  of,  §  675a. 

FRANCHISE,  action  against  party  usurping,  §  803. 
Condemnation  of,   under  eminent  domain,   §  1240. 
Usurpation  of,  proceedings  by  attorney  general,  §  803. 
Usurpation,   §§  802-810.     See  Usurpation  of  Office    and 
Franchise. 

FRAUD,  arrest  for,  §  479. 

Arrest  for,  in  justice's  court,  §  861. 

Award,  vacation  of,  for,  §  1286. 

Impeachment  of  judgment  for,  §  191 G. 

In  sale  of  decedent's  estate,  executor's  liability,  §  1572. 

Limitation  of  actions  for,  §  338. 

Limitation  of  action,  how  affected  by,  §§  338,  1573. 

Parol  evidence  to  show  in  writing,   §  1856. 

Receiver,  appointment  of,  §  564. 

Suspending  administrator  for,  §  1436. 

FRAUDULENT  CONVEYANCE,  appointment    of    receiver, 

§  564. 

Bond,  grantee  may  give,  on  suit  to  set  aside,  §  676. 

Bond  by  grantee  on  suit  to  set  aside,  filing  of,  §  677^;^. 

Bond  by  grantee  on  suit  to  set  aside,  condition  and 
amount  of,  §  C77. 

Bond  by  grantee  on  suit  to  set  aside,  objections  to 
sureties,   §   678. 

Bond  by  grantee  on  suit  to  set  aside,  manner  of  jus- 
tification of  sureties,  §  679i^. 

Bond  by  grantee  on  suit  to  set  aside,  when  becomes 
effective,  §  680. 

Bond  by  grantee  on,  suit  to  set  aside,  judgment  when 
may  be  rendered  on,  §  680%. 

Bond  by  grantee  on  suit  to  set  aside,  sureties,  justifi- 
cation, approval  and  disapproval,  §  678^^. 

Bond  by  grantee  on  suit  to  set  aside,  giving,  may  con- 
vey or  encumber,  §  676. 

Bond  by  grantee  on  suit  to  set  aside,  objection  that 
estimated  value  less  than  market  value,  pro- 
ceedings on,  §  679. 

Of    decedent,    recovery   by   executor,    §§    1589-1591. 

FRESNO  COUNTY,  acts  increasing  and  lessening  nnmber 
of  superior  judges  in,  p.  765. 


FUNERAL  EXPENSES— GRAND  JURY.  «-! 

FUNFRAL    EXPENSES.    55    1fi43.    Ifi^R. 

FURNITURE  exempt  from  execution,  §  G90. 

FUTURE,  included  in  present  tense,  §  17. 

GARNISHMENT:    See  Attachment. 

Garnishee,  when  liable  to  plaintiff,  §  544. 

GENDER  of  words  in -code,  §  17. 

GIFT.     Actions  involving  validity  of  gifts  under  will:  See 
Wills,   III. 
Action  involving  validity  of  gift  under  will,  conclusive- 
ness of  determination,  §  738. 
Action  to  quiet  title  involving  gift  under  will,  will  ad- 
missible, §  738. 

GOVERNOR,    direction    to    attorney  general    to    bring    quo 
warranto,  §  803. 
Request  of,  to  superior  judge  to  hold  court  for  another, 

§  160. 
Vacany  in  superior  court,  governor  to  fill,  §  70. 

GRADES,  at  railroad  crossings,  §  1240. 

GRAND  JURY,  ballot-box,  depositing  name  in,  §  209. 
Constituted,  how,  §  242. 
Defined,  §  192. 

Drawing  of,  order  for,  §  241. 
Drawing  names  by  clerk,  §  242. 
Drawn,  how,  §  241. 

Drawing,  certifying  and  listing,   §   241. 
Impaneled,  when  may  be,  §  241. 
Impaneling,  §§  241-243. 
Impaneling,    manner    of,     prescribed     by     Penal     Code, 

§  243. 
List  of  jurors,  by  whom  and  when  made,  §  204. 
List  of,  to  be  placed  with  county  clerk,  §  204. 
Names  of  jurors,  how  drawn,  §  242. 
Names  of  jurors  not  drawn  to  be    placed    on    list    for 

succeeding  year,  §  211. 
Names  of  jurors  not  impaneled  to  be  replaced  in  box, 

§  241. 
Names  to  be  drawn  from  grand  jury  box,  §  2li. 
Number  of  jurors,  §§  192,  241,  242. 


922  GRAND   JURY— GUARDIANS,    I. 

Kumhpr  nf  timfts  to  be  drawn  each  ypar,  §  941. 

Panel,  how  filed,  §  242. 

Selecting  and  listing  of  grand  jurors  required,  §  204. 

Superior  court  may  direct  drawing  of,  when,  §  241. 

When  may  be  impaneled,  §  241. 

Who  competent  to  act,  §  198. 

Who  not  competent  to  act,  §  199. 

GROWING  TREES,  damages  for  cutting  or  injury,  §§  733, 
734. 

GUARANTOR:    See  Surety. 

GUARANTY.     Representation  as  to  credit  of  third  person 
to  be  written,  §  1974. 
Statute  of  frauds,  effect  of,  §  1973. 

GUARDIANS. 

I.     Who  entitled  to  act;    nomination;    appointment. 
II.     Letters. 

III.  Qualification;   bond. 

IV.  Inventory  and  appraisement. 

V.  Powers,  duties  and  liabilities;  custody  of  minor. 

VI.  Sale  of  property. 

VII.  Lease  or  mortgage  of  property;  partition  of. 
VIII.  Non-residents,  guardians  of. 

IX.  Joint  guardians. 

X.  Accounting. 

XI.  Compensation;   expenses;    allowance. 

XII.  Appeals. 

XIII.  Termination  of  authority. 

XIV.  Miscellaneous  provisions. 

I.     Who  entitled  to  act;  nomination;  appointment. 

•  Act  authorizing  corporation  to  act  as,  pp.  768  et  seq. 
Appointment,  certificate  of,  seal,  §  153. 
Appointment,  notice,   §  1747. 

Appointment  of,  order  for  operates  as  a  decree,  §  1808. 
Appointment  of,  order  of,  how  entered,  §  1808. 
Appointment,  power  to  make,  §  1747. 
Appointment,  preference  in,  who  entitled  to,   §  1751. 


GUARDIANS,    I,    II,    III.  923 

Appointment   to   be    made    on    petition    after    notice, 

§   1747. 
Appointment  to  fill  vacancy,  §  1801. 
Corporation  may  act,  §  1348. 

Court  to  appoint  when  infant  under  fourteen,  §  1748. 
Judge,  power  of  at  chambers  in  matters  of  guaidian- 

ship,  §  166. 
Juror,  relation  of  guardian  and  ward  as  affecting  qual- 
ification of,  §  602. 
Nomination,    infant    may    make   when  he  is  fourteen, 

§§  1748,  1750. 
Nomination,   failure  of   infant  over  fourteen  to  make, 

court  may  appoint,  §   1749. 
Nomination    by   infant   over   fourteen,    court    may   still 

appoint,  when,  §  1749. 
Nomination  of  another  guardian,  infant  may  make  on 

reaching  fourteen  years,  §  1750. 
Nominee  of  minor  fourteen   or  over  to   be  appointed, 

§  1751. 
Notice  of  appointment,   §  1747. 
Petition  for  appointing,  who  may  file,  §  1747. 
Preference  in  appointment  of,  who  entitled  to,  §  1751. 
Referee,   relation   of   guardian  and   ward    as    affecting 

qualification  of,  §  641. 
When  may  be  appointed,  generally,  §  1747. 

II.  Letters. 

Form  of,  §  1754. 

Oath  of  guardian  to  be  indorsed  on,  §  1754. 

Oath  of,  to  be  indorsed  on  letters,  §  1754. 

To  be  recorded,  §  1756. 

When  to  be  issued,  §  1754. 

III.  Qualification;  bond. 

Bond,  conditions  of,  duty  to  perform,  §  1755. 

Bond,  code  provisions  applying  to,  §  1809. 

Bond,  discharge  of  sureties  on  old  bond,  §  1803. 

Bond,  liability  on,  kinds  of  money,  §  1407. 

Bond,  limitation  of  actions  on,  §§  1805,  1806. 

Bond,  may  be  prosecuted  for  benefit  of  any  person 
interested,  §   1804. 

Bond,  new,  when  required,  §  1803. 

Bond  of,  conditions  of,  §  1754. 

Bond  of,  conditions  in,  court  may  insert  in  order  ap- 
pointing, §  1755. 


924  GUARDIANS,    III,    IV,    V. 

Bond  of,  for  selling  property,  §  1788. 

Bond  of  testamentary,  §  1758. 

Bond,  sureties  on  qualifications  of,  §  1809. 

Bond,  surety  company  may  act  as  surety,  §  1809. 

Bond,   testamentary   guardian    need    not    give    unless 

court  directs,  §  1758. 
Bond,  to  be  filed,  §  1804. 
Bond,  to  be  recorded,   §  1756. 
Bonds,    where    more     than     one     guardian     appointed, 

§   1807. 
Corporation  as,  qualification,  oath  and  bond,  §  1348. 
Corporation,  deposit  of  funds    with    and    reduction    of 

bond,  pp.  769,  770,  §§  2,  4,  Stats. 

IV.  Inventory  and  appraisement. 
Appraisement  of  estate,  how  made,  §  1773. 
Appraisement  to  be  recorded,  §  1773. 
Appraisement  of    after-acquired  property,  §  1773. 
Inventory,  guardian  to  return,  §  1773. 
Inventory  of  after-acquired  property,  §   1773. 
Inventory  to  be  recorded,  §  1773. 

Inventory  to  be  sworn  to,  §  1773. 
Inventory,  when  and  how  made,  §  1773. 

V.  Powers,  duties  and  liabilities;   custody  of  minor. 

Accounts  of  ward,  guardian  to  settle,  §  1769. 

Appearance  by  guardian,  §  1722. 

Appearance  by,  in  justice's  court,  for  infant  or  Incom- 
petent, §  843. 

Custody  of  minor,  court  may  direct  sheriff  to  take, 
pending  proceedings,  when,  §  1747. 

Custody  of  minor,  temporary,  pending  hearing  of  pro- 
ceedings, court  may  provide  for  when,  §  1747. 

Death  of  ward  or  injury  to,  guardian  may  sue,  §  376. 

Debts  due  ward,  guardian  to  recover,  §  1769. 

Debts  due  ward,  may  compound,  §  1769. 

Debts  of  ward,  how  to  be  paid,  §  1768. 

Duty  to  attend  to  interests  of  ward,  §  1722. 

Education  of  ward,  guardian  has.  when,  §  1752. 

Education  of  ward,  sale  or  mortgage  of  property, 
§§  1777,  1779. 

Education,  authority  of  guardian  over,  continues  how 
long,  §  1753. 

Infant  to  appear  by,  or  by  guardian  ad  litem,  §  S72. 

Investment  of  money,  §§  1779,  1780,  1792. 


GUARDIANS,    V,    VI.  925 

Investments,  authority  of  court  over,  §  1792. 
Investment  on  order  of  court,  notice  of,  §  1792. 
Maintenance  of  ward,  §  1770. 
Maintenance  of  ward,    allowing    guardian    credit    for, 

§  1771. 
Maintenance   of   ward,    applying   proceeds   of   sale   to, 

§  1779. 
Maintenance  of  ward  by  third  person,  §  1771. 
Maintenance  of  ward,  how  enforced,  §  1771. 
Maintenance  of  minor  out  of  income  of  own  property, 

§  1757. 
Maintenance  and  education  of  ward,  sale  or  mortgage 

of  property,  §  1777. 
Management  of  estate,  duty  of  giiardian,  §  1770. 
Mortgage  or  sale  of  estate  to  maintain  ward,  §  1770. 
Mortgage  of  property  for  maintenance  or  education  of 

ward,   §   1777. 
Power  and  duty  of  guardian  of  the  estate,  §  1753. 
Power  and  duty  of  guardian  of  the  person,  §  1753. 
Powers  and  duties,  testamentary  guardian,  §  1758. 
Seduction  of  ward,  guardian  may  sue  for,  §  375. 
Service  of  summons  on  guardian,  §  411. 
Service  on,  equivalent  to  service  on  ward,  §  1722. 
Service  on  ward,  guardian  may  waive,  §  1722. 
Territorial  limit  of  authority,  §  1913. 
Testamentary,  powers  and  duties  of,  §  1758. 
To  manage  estate,  how,  §  1770. 
To  maintain  ward,  §  1770. 
To  represent  ward  in  suits,  §  1769. 
Waste,  liability  for,  §  732. 

VI.     Sale    of    property. 

Bond  for,  §  1788. 

Ck)nsent  filed,  §  1783. 

Conveyance,  guardian  decreed  to  make,  when  vendor 

becomes  incompetent,  §   1810. 
Ck)sts,  §  1786. 

Court  may  order  public  or  private,  §  1787. 
Disposition  of  proceeds,  §  1779. 
For  maintenance  of  ward,  §  1770. 
Hearing  of  application  for,  §  1784. 
Hearing   of   application,   who    may    be    examined   at 

§  1785. 
Hearing,  compelling  attendance  of  witnesses,  §  1785. 
Investment  of  proceeds,  §§  1779,  1780. 


;  GUARDIANS.    VI,    VII,    VIII. 

Investment  of  proceeds,  court  may  order,  §§  17.80,  1792. 
Limitation  of  action  to  recover  property  sold,  §  1806. 
Maintenance  and  education  of  ward,  sale  for,  §  1777. 
Maintenance    and    edu(  alien,    applying    proceeds    to, 

§  1779. 
Notice  to  next  of  kin,  §  17S2. 
Of  minor  heirs,  conditions  of.  §  1791. 
Order  for,  when  granted,  §  17S7. 
Order  for,  obtained  how,  §  1781. 
Order  for,  service  and  publication  of,  §  1783. 
Order  for,  to  specify  what,  §  17S7. 
Order  to  show  cause,  §  1782. 
Order  for,  expires  in  cne  year,  §  1790. 
Personalty,  when  s<ild.  §  1782. 
Petition  for,  what  to  contain,  §  1781. 
Petition  to  be  verified,  §  1781. 
Practice  governing,  §  1789. 
Proceedings  for,  in  general,  §   1789. 
Procedure  as  in  sale  of  decedent's  realty.  §  1789. 
To  be  made  upon  order  of  court,  when,  §   1778. 
When  may  be  ordered,  §  1777. 

VII.  Lease  or  mortgage  of  property;    partition   of. 
Lease  or  mortgage  of  estate  of  ward,  §§  1577-1579. 
Lease  by,  proceedings  to  obtain,  §  1579. 
Mortgage  of  estate  by,  §  1577. 

Mortgage  by,  proceedings  to  obtain,  §  1578. 

Mortgage  of  estate  to  maintain  ward:   See  ante,  V. 

Partition,  §§  777,  783,  793,  794. 

Partition,  assent,  authority  of  court,  how  obtained, 
§  1772. 

Partition,  assent,  authority  of  court  necessary,  §  1772. 

Partition,  authority  of  guardian,  §  1772. 

Partition,  guardian  may  assent  to,  §§  795,  1772. 

Partition,  guardian  may  consent  to  and  execute  re- 
leases,  §   795. 

VIII.  Nonresidents,  guardians  of. 
Appointment,  when  made,  §  1793. 

Appointment,    excludes    jurisdiction    of    every    other 

court,  §  1796. 
Bond  of,  §  1795. 

Guardianship  shall  extend  to  what,  §  1796. 
Inventory,  account  and  disposal  of  property,  §  1795. 
Notice,  hearing  and  examination,  §  1793. 


GUARDIANS.    VIIl,     IX,    X,    XI,    XII,    XIII.  i>27 

Powers  and  duties  of,  §  1794. 
Property,  removal  of,  §§  1797,  1798. 
I*roperty,  removal  of,  discharge  of  person  in   posses- 
sion, §  1799. 
Property,  removal  of,  notice  of  application,  §  1798. 
Property,  removal  of,  proceedings  for,  §§  1797,  1798, 
Property,  removal  of,  rcreipt,  §  1799. 
Who  may  apply  for,  §   1793. 

IX.  Joint   guardian. 

Several  may  be  appointed,  §  1807. 
Joint,  allowance  of  accounts,  §  1775. 

X.  Accounting. 
Accounting  by,  §  1774. 
Account  to  be  sworn  to,  §  1773. 

Allov/ances  for  sums   spent   in  maintenance  of  ward, 

§  1771. 
Compelling,  §  1773. 
Failure  to  account,  removal,  §  1801. 
Of  joint  guardians,  §  1775. 
When  to  be  made,  §§  1773,  1774. 

XI.  Compensation;   expenses;   allowance. 
Allowances  to,  §  177G. 

Allowances   for   sums   spent  in  maintenance  of  ward, 

§   1771. 
Compensation  of,  §  1776. 
Disbursements,  allowance  of,  §  1776. 
Expenses  of,  §  1776. 

XII.  Appeals. 

Appeal  by  guardian,  official  bond  sufficient,  §  965. 

Appeal  from  order  respecting  letters,  time  for,  §  939. 

Order  and  judgments  relating  to  guardianship  appeal- 
able, §  963. 

Reversal  of  order  appointing  guardian,  validity  of  acts, 
§  966. 

XIII.  Termination  of  authority. 

Account,  failure  to  make,  removal,   §    1801. 
Authority  of  continues,  how  long,  §  1753. 
Authority,  what  terminates,  §  1753. 


928  GUARDIANS,    XIII,    XIV-GUARDIAX    AD    LITEM. 

Chambers,  power  of  judge  at,  in  guardianship  matters, 

§  166. 
Custody  of  property,    guardian's    authority    continues 

how  long,  §  1753. 
Discharge  of,  §  1802. 
Guardianship,  how  terminated,  §  1802. 
Marriage  of  infant  ward,  effect  of,  §§  i760,  1802. 
Marriage  of  does  not  terminate  authority,  §  1751. 
Removal  of,  §  1801. 
Removal  of,  grounds  for,  §  1801. 
Removal  for  contempt,  §  1721. 
Removal,  notice  of,  §  1801. 

Removal  of,  appointment  of  another  guardian.  §  1801. 
Resignation  of,  §  1801. 
Resignation    of,     appointment    of    another    guardian, 

§  1801. 
Termination  of  authority,  §  1753, 

XIV.     Miscellaneous  provisions. 

Administrator,  guardian  as,  §  1368. 

Change  of  venue,  petition,  §  1760. 

Change  of  venue,  notice  of  petition,  §  1760. 

Change  of  venue,  contest  of  petition,  §  1760. 

Change  of  venue,  hearing  of  petition,  §  1760. 

Change  of  venue,  order,  how  obtained,  §  1760. 

Change  of  venue,  to  what  court  may  be  made,  §  1760. 

Change  of  venue,  proceedings  transferred  to  another 
county,  when,  §  1760. 

Change  of  venue,  jurisdiction  of  court  to  v/hich  case 
removed,  §  1760. 

Change  of  venue,  fees  of  clerk,  §  1760. 

Change  of  venue,  order  directing  when  made,  §  1760. 

Code  sections  governing  appointment,  powers  and  du- 
ties,   §    304. 

Examination  of  persons  suspected  of  defrauding 
wards,  or  concealing  property,  §  1800. 

Practice  governing,  §   1808. 

GUARDIAN    AD    LITEM,    appointment   of   where    general 

guardian,  §  372. 
Appointment  of,  in  justice's  court,  §  843. 
For  infant,  how  appointed,  §  373. 
For  lunatic,  how  appointed,  §  373. 
Infant  or  insane  person  to  appear  by  general  guardian, 

or  by,  §  372. 
Power  to  appoint,  in  general,  §  1759. 


HABEAS    CORPUS— HUSBA^rD    AND    WIFE.  »a9 

HABEAS  CORPUS,  superior  court  or  judge  may  issue,  §  76. 
Supreme  court  may  issue,  §  51. 
Supreme  judge,  issuance  of,  by,  §  54. 
HANDWRITING,  comparisons,  §  1945. 
How  proved,  §§  1943-1945. 
Of  decedent,  entries  as  evidence,  §  1946. 
Proof  of,  on  iirobate  of  will,  §   1315. 
HASTINGS  LAW  SCHOOL,  diploma  from,  effect  of,  §  280a. 
HEARSAY:   See  Evidence. 
HEIRS,    advancements    to,    §    1686. 
May  sue  for  wrongful  death,  §  377. 
Proceedings  for  determination  of  heirship,  §  1664. 
HIGH-WATER   MARK,  boundary,  §  2077. 
HIGHWAY.     Boundary,  highway  as,  §  2077. 
Injuring  trees,  etc.,  in,  §§  733,  734. 
Partition  proceedings  affecting,  §  764. 
HOLIDAYS,  acts  not  to  be  done  on,  §  13. 
Acts  which  may  be  done  on,  §  134. 
Computation  of  time,  §  12. 
Courts  not  open  on,  except  when,  §  134. 
Holding  court  on  day  following,  §  135. 
Injunction,    writs    of,    may  be   Issued  apd   served  on, 

§   76. 
Judicial  days,  §  133. 
Last    day    falling    on    Sunday,    next    day    celebrated, 

§§  10,  11. 
Nonjudicial  days,  §  134. 
Performance  on  day  following,  §  13. 
Prohibition,  writ  of,  may  be  issued  and  served  on,  §  76. 
What  days  are,  §  10. 
HOMESTEAD,  appraisers'  report,  appeal  from,  §  963. 
Association,  exemption  of  shares  in,  §  690. 
Disposition  of,  on  death  of   spouse,   §  1723. 
Inventory  of  decedent's  estate  to  include,  §  1443. 
Probate,  §§  1474-1486.     See  Estate  of  Decedent. 
Proceedings  to  terminate  upon  death  of  spouse,  §  1723. 
HOSPITALS.    Limitations  in  actions  by  state  for  hospital 

dues,  §  345. 
HOUSEHOLDER.     Exemption  of  property,  §  690. 
HUMBOLDT   COUNTY,  act  increasing  number  of  judges 

In,  p.  765,  Stats. 
HUSBAND  AND  WIFE:   See  Divorce;   Marriage. 
Community  property,  death  of  spouse,  §  1723. 

Code  Civil  Proc— 59. 


980  HUSBAND   AND    WIFE— IMPROVEMENTS. 

Husband  not  liable  for  sole  trader's  debts,  §  1821. 

Issue  presumed  legitimate,  §  1962. 

Married  woman   as  administratrix,   §   1370. 

Married  woman  as  executrix,  §  1352. 

Married  woman  may  sue  or  be  sued  alone  when,  §  370. 

Proceedings  to  determine  interest  on  death  of  spouse, 
§   1723. 

Testimony  of,  as  to  legitimacy  of  child,  §  1880. 

Wife  as  sole  trader,   §§   1811-1821.     See   Sole  Trader. 

Wife  as  party,  husband  when  to  be  joined,  §  370. 

Wife  may  defend  action  against  herself  and  husband, 
§  371. 

Witnesses,  as,  §  1881. 
IDENTITY.     Nonresident  entitled  to  letters,  identity,  how 
established,  §  1379. 

Opinion  of  witness  as  to,  §  1870. 

Presumption  of,  from  identity  of  name,  §  1963. 
ILLEGALITY.     Parol  evidence  to  show  in  writing,  §  1856. 
ILLEGITIMACY,   presumption  against,   §    1963. 
ILLNESS:   See   Sickness. 
IMPEACHMENT,  court  of.  Is  court  of  record,  §  34. 

Court  of,  impeachment  to  be  presented    by    assembly, 
§  37. 

Court  of.  Is  the  senate,  §  36. 

Court  of,  jurisdiction  of,  §  37. 

Court  of,  officers  of  senate  are  officers  of,  §  38. 

Court  of,  procedure  provided  in  Penal   Code,  §  39. 

Court  of,  senatoi-s  to  be  upon  oath,  §  36. 

Court  of,  senate,  quorum  of,  what  constitutes,  §  36. 
IMPRISONMENT.     Bail  are  exonerated  by  imprisonment 
of  defendant,  §  491. 

Contempt,  for:     See  Contempt. 

Debtoi   in  supplementary  proceedings,  of,  §  715. 

Discharge  of  person  confined  on  civil  process,  §§  1143- 
1154.     See  Prisoner. 

Judgment  debtor,  of,  §  682. 

Limitation  of  actions,  how  affected  by,  §  352. 

Mandamus,  for  disobedience  to,  §  1097. 

Omission  to  perform  act,  imprisonment  until  perform- 
ance, §  1219. 

Will,  to  enforce  production  of,  §  1302. 
IMPROVEMENTS:    See  Eminent  Domain. 

Apportionment  of,  In  partition,  §§  763,  764. 

Ejectment,  as  setoff  in,   §   741. 


IMPROVEMENTS— INFANT.  »31 

Lien  for:     See  Mechanic's  Lien. 
Partition  of  site  of  town  or  city,  in,  §  763. 
INADVERTENCE,  relief  from,  by  amendment,  §  473. 
INDEMNITY.     Sheriff,  indemnity  to,  on  claim  of  property, 
§   689. 
Action  against  sheriff,  notice  to  sureties,  §  1055. 
INDEX  to  justice's  docltet,  §  913. 

INDICTMENTS,  appellate  jurisdiction  in  cases  of,  §  52. 
INDIRECT  EVIDENCE:  .See  Evidence. 
INDISPENSABLE    EVIDENCE:   See   Evidence. 
INDORSEMENT,  presumption  as  to  time  of,  §  1963. 

Presumption  as  to  time  and  place  of,  §  1963. 
INFANT:   See  Guardians;    Parent  and   Child. 
Administrator,  as,  §§  1368,  1369. 
Adverse  possession  against,  §  328. 
Appearance  of,  in  justice's  court,  by  guardian,  §  843. 
Attorney  for  minor  heirs,  §  1718. 
Contest  of  probate,  limitation  of  actions,  §  1333. 
Distribution  of  estate  to,  §  1703%. 
Distribution     to     treasurer   where    defendant    a    minor 

without  guardian,  §  1703%. 
Escheated   estate,   limitation  of  actions    on    claim    to, 

§   1272. 
Executor,  as,  §§  1350,  1354. 
Guardian  ad  litem,  when  appointed,  §  372. 
Guardian  ad  litem  for,   §§   372,  373.     See  Guardian  ad 

Litem. 
Guardian  ad  litem  in  justice's  court,    how    appointed, 

§   843. 
Guardian  for:     See  Guardians. 

Guardian  may    consent    to    partition    and    execute    re- 
leases,  §   795. 
Juvenile  offenders:    See  Probation  Officers. 
Letters      of     administration     durante     minore    aetate, 

§  1354. 
Limitation  of  actions,  §.§  328,  352. 
Limitation  of  action  by,  to  recover  estate  of  decedent 

sold  by  order  of  court,  §  1574. 
Maintenance  of,  out  of  income  of  own  property,  §  1757. 
Mortgage  or  lease  of  estate  of,  §§  1577-1579. 
Name,  change  of,  §  1276. 
Partition,  §§  777,  783,  793. 
Partition,  guardian  may  receive  proceeds  of,  §  793. 


932  INFANT— INJUNCTION. 

Probationary  treatment  of  juvenile  ofEenders,  §  131. 
Service  of  summons  on,  §  411. 
Sole  trader  must  maiiitain  minor,  §  1820. 
Witness,  as,  §  1880. 

Wrongful  death  of  or  injury  to,  who  may  sue  for,  §  376. 
Wrongful  death  of,  who  liable  for,  §  376. 
INFERENCE.     Admission,  inference  from,  §  1832. 
Defined,  §  1958. 
Upon  what  founded,  §  1960. 

See  Evidence. 

INFORMATION  in  action  for  usurpation  of  office,  §  803. 

In  escheat  proceedings,  §  1269. 
INFORMATION    AND    BELIEF,   denial    of    allegation   on, 

§   437. 
INJUNCTION,  affidavits,  what  to  show,  §  527. 

Affidavits,  service  of,  §  527. 

Answer,  after,  §   528. 

Appeal  from  order  respecting  time  for,  §  939. 

Appeal  lies  from  what  orders  respecting,  §  963. 

Complaint  to  be  verified,  §  527. 

Complaint  and  verification,  service  of,  §  527. 

Conclusiveness  of  judgment  against  sureties  on  bond, 
§  532. 

Continues  in  force  how  long,  §  527. 

Corporation,  to  suspend  business  of,  §  531. 

Corporation,    to    suspend    business    of,   when   state   a 
party,  §  531. 

Court  commissioner  may  not  grant,  §  259. 

Defined,  §  525. 

Definition  of  injury  to  person,  §  29. 

Definition  of  injury  to  property,  §  28. 

Dissolving,   §§   532,    533. 

Dissolution,  affidavits,  §  532. 

Dissolution,   bond    on,     where    water  rights    involved, 
§    532. 

Dissolving,  procedure,   §   532. 

Duration  of,  where  granted  prior  to  trial,  §  527. 

Executions,  enjoining  injury  after  sale  and  before  con- 
veyance, §  745. 

Executor,  restraining  during  proceedings  to  prove  lost 
will,  §  1341. 

Foreclosure,  injury  to  property  enjoined  pending,  §  745. 

Granted  by  judge,  enforceable  as  order  of  court,  §  525. 

Grounds  for  granting,  §  526. 

Hearing,   §   530. 


INJUNCTION— INJURIES.  SXt 

Holidays,  may  be  issued  and  served  on,  §  76. 

How  long  in  force,  §  527. 

Kinds  of,  §  27. 

Limitation  of  action,  effect  on,  §  356. 

May  be  issued  or  served  any  day,  §  134. 

Modifying,   §§   532,   533. 

Nuisance,  against,  §  731. 

Order  to  show  cause,  procedure,  §  530. 

Place  of  trial,  where  injunction  asked,  §  392. 

Procedure  to  obtain,   §   527. 

Restraining  order,  §  530. 

Sunday,  writ  may  be  served  on,  §  76. 

Time  at  which  may  be  granted,  §  527. 

Undertaking,  §  529. 

Undertaking,  exception  to  sureties,  §  529. 

Undertaking,  justification  of  sureties,  §  529, 

Undertaking,  of  whom  not  required,  §  529. 

Vacating  or  modifying,  §   533. 

Vacating  or  modifying,  affidavit,  §  532. 

Vacating  or  modifying,  procedure,  §  532. 

Vacating  or  modifying  in  cases  involving  water  rights, 
§  532. 

Vacating  or  modifying  in  cases  involving  waters,  dam- 
ages, attorneys'  fees,   §   532. 

Waste,  §§  526,  745. 

Waste,  enjoining,  §  526. 

Waste,  pending  time  to  redeem,  enjoined,  §  706. 

Waters,  diversion  of,  not  enjoined,  bond,  §  530. 

What  is,  §  525. 

What  required  to  obtain,  §  527. 

When  denied,  §  526. 

When  may  be  granted,  §  526. 

When  refused,  diversion  of  waters,  bond,  §  530. 

Who  may  grant,   §    525. 
NJURIES,  child,  father,  mother,  or  guardian  may  sue  for, 
§  276. 

Civil  action  arises  from,  §  25. 

Death,  causing,  §§   376,  377.     See  Wrongful  Death. 

Joinder  of  claims  for,  §  427. 

Kinds  of,  enumerated,   §   27. 

Liability  of  steamers  and  vessels  for,  §  813. 

Liability,  on  entry  for  survey  of  land,  §  743. 

Liability  for,  after  sale  on  execution,  §  746. 

Place  of  trial  in  actions  for,  §§  395,  832. 

To  child,  father,  etc.,  may  sue  for,  §  376. 

To  property,  defined,  §  28. 

To  person,  defiiixed,  §  29. 


934  INQUEST— INSANE    PKKSONS. 

INQUEST,  jury  of:    See  Jury. 
Jury  of,  defined,  §  195. 

Jury  of,  how  summoned,  §§  235,  254. 

Manner  of  impaneling  jury  of,   §   254. 
INSANE    ASYLUM.     Limitations   in   actions   by    state   for 

tiospital  dues,  §  345. 
INSANE  PERSONS:    See  Guardians. 
Adverse  possession  against,  §  328. 

Administrator,  as,  §§  1368,  13G9. 

Appearance  by,  in  justice's  court,  by  guardian,  §  843. 

Contest  of  probate,   limitation   of   action,   effect  of  in- 
sanity, §  1333. 

Definition  of  incompetent,  etc.,  §  1767. 

Distribution  of  estate  to,  §  1703^. 

Distribution    of    interest    in    estate    of    incompetent    to 
treasurer,  §  1703%. 

Escheated    estate,    limitation    of    actions    on   claim    to, 
§  1272. 

Guardian,     appointment,     when    made,     after   hearing, 
§  17G4. 

Guardian,  accounting  by,  §  1774. 

Guardian,  bond  of,  §  1765. 

Guardian  decreed   to   make     conveyance   where   vendor 
becomes  incompetent,  §  1810. 

Guardian,  final    accounting  by,    notice  to  secretary   of 
state  commission  in  lunacy,  §  1774. 

Guardian  of,  discharge  of,  §  1802. 

Guardian  of,  "incompetent"  defined,  §  1767. 

Guardian,  hearing  for  appointment,  incompetent  must 
attend,  §  1763. 

Guardian   may    consent   to     partition   and   execute   re- 
leases, §  795. 

Guardian  may  receive  proceeds  of  partition,  §  794. 

Guardian,  notice  of  hearing  for  appointment,  §  1763. 

Guardian,  petition  for  appointment  of,  §  1763. 

Guardian,  powers  and  duties  of,  §  1765. 

Guardian,  proceedings  for   restoration   of  incompetent, 
§  1766. 

Guardian,  service  on,  equivalent  to  service  on  lunatic, 
§  1722. 

Guardian  ad  litem,  when  appointed,  §  372. 

Guardian  ad  litem  for,  how  appointed,  §  373. 

Guardian   ad    litem   in   justice's   court,   how   appointed, 
§  843. 

Guardian  ad  litem  to  appear  by,  or  by  guardian,  §  372. 

Incapable,  defined,  §  1767. 


INSANE   PEUSONS— INSTRUCTION.  935 

Incompetent,  etc.,  defined,  §  1767. 

Limitation  of  actions,  §§  328,  352. 

Limitation  of  action  by  to  recover  estate  sold  by  order 
of  court,  §  1574. 

Mentally  incompetent,  definition  of,  §  1767. 

Mortgage  or  lease  of  estate  of,  §§  1577-1579. 

Opinion  of  intimate  acquaintance  as  to,  §  1870. 

Opinion  of  subscribing  witness  as  to  sanity,  §  1870. 

Partition,  guardian  may  receive  proceeds  of,  §  794. 

Restoration  of,  proceedings  for,  §  1766. 

Service  of  summons  on,   §  411. 

Territorial  limits  of  authority,  §  1913. 

Witness,  as.  §  1880. 
INSANITY,  effect  of,  on  limitation  of  actions,  §§  328,  352, 
1574. 

Effect  of  on  claim  to  escheated  estates,  §  1272. 
INSCRIPTIONS  as  evidence,  §  1870. 
INSOLVENCY.     Law  governing  insolvent  debtors,  §  1822. 

Wages  and  salaries  as  preferred  claims,  §  1204. 
INSPECTION    OF  WRITINGS,  contempt  for  disobedience 
to  order  respecting,  §  1000. 

Docket  of  judgment  open  for,  §  673. 

Execution  book  is  open  to,  §  683. 

Party  making,  need  not  put  in  evidence,  §  1939. 

Produced  by  witness  to  refresh  his  memory,  §  2047. 

Public  records  open  for,  §  1892. 

Refusal  of,  its  effect,  §  449. 

When  may  be  demanded,  §  1000. 

Writing    shown    witness,    adverse    party    may    inspect, 
§  2054. 

Written  instrument,  demand  for,   §   449. 
INSTRUCTION,  courts  open  any  day  to  give,  §  134. 

Erroneous,  when  disregarded,  §  475. 

Evidence  in  general,  as  to  the.  §  2061, 

Further,  after  jury  retired,  §  614. 

General  nature  and  requisites  of,  §  608. 

Holidays,  given  on,  §  134. 

New  trial,  for  disregard  or  misapprehension  of,  §  662. 

Preponderance  of  evidence,  as  to,  §  2061. 

Reasonable  doubt,  as  to,  §  2061. 

Special,  function  of  court  respecting,  §  609. 

Testimony,  court  stating,  to  inform  jury  they  are  ex- 
clusive judges  of  facts,  §  608. 

Weight  and  character  of  evidence,  as  to,  §  2061. 

What  must  be  furnished  on  request,  §  608. 


92G  INSTRUCTION— INTERVENTION. 

Written  statement  of  points  to  be  furnished,  §  608. 
Written  statement  of  points  to  be  signed,  §  608. 
INSTRUMENT,  construction  of,  §§  1856-1866. 
Demand  for  inspection,  §   449. 
Execution  of,  defined,  §  1933. 
Pleaded  how,  in  justice's  court,  §§  886,  887. 
Pleading,  genuineness  of,  how  admitted  or  controverted, 
§§  447-449. 

INSURANCE,   life,   testimony  of    physician    in  action    op 
policy,   §  1882. 
Insurers  in  separate  policies  may  be  joined,  §  383. 
Mortgaged  estate  of  decedent,  of,  §  1578. 
Surety  corporations,  duty  in  regard  to,  p.  762,  Stats. 

INSURANCE  COMMISSIONER,  corporation  formed  to  act 
as  surety,  examination  into  by  insurance  com- 
missioner, and  duties  of,  §  1056. 

INSURRECTION,  change  of  place  of  holding  court,  on  ac- 
count of,  §  142. 

INTEREST,  claims  against  decedent's  estate,  on,  §  1513. 
Damages  in  eminent  domain,  on,  §  1249. 
Disbursements  in  partition  proceedings,  on,  §  801. 
Disqualifying  judge  or  justice,  §  170. 
Disqualification    of    probate    judge    to    act    because    of, 

§§  1430-1432. 
Foreclosure,  debt  falling  due  at  different  times,  §  728. 
Judgment,  on,  §§  682,  1035. 
Mortgage  of  decedent's  estate,  on,  §  1578. 
Rebate,  on   foreclosure,   §   728. 

Receiver,  funds  in  hands  of  may  be  invested,  §  569. 
Redemptioner  must  pay  what,  §§  702,  703. 
Referee,  interest  disqualifying,  §  641. 

INTERLOCUTORY  JUDGMENTS,  appealability  of,   §  963. 

Appeal,  time  for,   §   939. 

Order  or  decision  deemed  excepted  to,  §  647. 
INTERPLEADER,  when  and  how  maintained,  §  386. 
INTERPRETATION.     Writings,  interpretation  of,  §  1857. 
INTERPRETER,  contempt,  when  guilty  of,  §  1884. 

Italian,  appointment   and   compensation  of  in    certain 
cities,  p.  775,  Stats. 

Summoned-,  may  be  when,  §  1884. 
INTERVENTION,  answer  to,  §  387. 

Demurrer  to,  §  387. 

Service  of,  on  parties  and  attorneys,  §  387. 


INTERVENTION— ITALIAN     INTERPRETER.  937 

When  and  how  effected,  §  387. 
Who  may  intervene,  §  387. 

INTERROGATORIES,  annexed  to  commission  to  take  testi- 
mony, §  2025. 

INVENTORY:   See  Estate  of  Decedent. 

Of  attached  property,  §  546. 

IRREGULARITY,    of    proceedings,    gi'ound    for    new    trial, 
§  657. 
Effect  of,  in  proceedings  on  judicial  sale,  §  708. 

IRRELEVANT  MATTER,  may  be  stricken  out,  §  453. 

IRRIGATION.     Injunction  to    prevent    diversion,    refusal, 
bond,  §   532. 

ISSUES,  bringing  to  trial,  §  594. 

By  whom  tried  and  order  of  trial,  §  592. 

Calendar,  §  593. 

Defined,  §  588. 

Fact,  jury,  how  waived,  §  631. 

Fact,  of,  how  arises,  §  590. 

Fact,  of,  reference,  §  592. 

Fact  of,  trial  of,  by  court,  §  592. 

Fact,  tried  by  jury  generally,  §  592. 

General  denial  puts  in  issue,  what,  §  437. 

Heirship,  issues  to  determine,  how  tried,  §  1664. 

In  proceedings  against  joint  debtor  after  judgment,  how 

tried,  §  994. 
Justices'  courts,  in:   See  Justice's  Court,  XIV. 
Kinds  of,  §  588. 

Law,  issue  of  to  be  first  tried,  §  592. 
Law,  raised  by  demurrer,  §  589. 
Law,  of,  how  tried,  §  591. 
Law,  of,  how  tried  in  justice's  court,  §  881. 
Law,  of,  proceedings  after  determination  of,  §  636. 
Presumption  that  all  matters  within,  were  passed  upon, 

§  1963. 
Probate  court,  in,  how  tried,  §  1716. 
Reference  of,  when  ordered,  §  638. 
Special,  not  made  by  pleading,  how  tried,  §  309. 

ITALIAN  INTERPRETER,  appointment  and  compensation 
of  in  certain  cities  and  counties,  p.  775,  Stats. 


938  JOINDER— JUDGES. 

JOINDER  of  causes  of  action,  §  427. 
Misjoinder,  demurrer  for,   §  430. 
What  actions  may  be  joined,  §  427. 

JOINT  AUTHORITY,  majority  may  act,  §  15. 

JOINT  CONTRACT,  action  on  in  justice's  court,  service 

outside  of  county,  §  848. 
Appearance,    by   other,    where   one   defendant   appears, 

§  406. 
Service  of  summons  where  one  or  more  appear,  §  406. 

JOINT  DEBTORS,  appearance  by  other,  where  one  or  more 

appear,   §   406. 
Contribution,  §  709. 

Declaration  of,  when  admissible,  §  1870. 
Judgment  not  to  exceed  amount  remaining  unsatisfied, 

§  994. 
New  complaint  need  not  be  filed  in  proceedings  against, 

§  990. 
Not  summoned   in  original   action   may   be   summoned 

after  judgment,  §  989. 
Proceedings  against  after  judgment,  answer,  §  992. 
Proceedings  against  after  judgment,  defenses,  §  992. 
Proceedings   against  after  judgment,  issue,   how  tried, 

§  994. 
Proceedings    against    after    judgment,    what    constitute 

the  pleadings,  §  993. 
Several,  part  served  may  be  proceeded  against,  §  414. 
Summons  to  after  judgment,  affidavit  for,  §  991. 
Summons  to  after  judgment,  what  to  contain,  §  990. 
Summons,  service  and  return  of,  §  990. 

JOINT  GUARDIANS,  account  of,   §   1775. 

JOINT  OWNERS,  declarations  of,  when  admissible,  §  1870, 

JOINT  TENANTS:   See  Co-tenancy,  Partition. 

Any  number  may  sue  or  defend  for  all,  §§  3S1,  384. 
Parties  in  suits  concerning,  §§  381,  384. 
Partition,  may  sue  for,  §  752. 
Waste,  liability  for,  §  732. 

JUDGES,  absence  of,  adjournment,  §  139. 
Absence  of,  proceedings  in,  §  139. 
Acknowledgments,  may  take,  §  179. 


JUDGES.  '  M9 

Affidavits,  may  take,  §§  179,  2012,  2013,  2014. 

Affidavit  in  another  state,  may  take,  §  2013. 

Affidavit,  may  be  taken  before,  §  2012. 

Affi-davit  of  prejudice,  proceedings  on,  §  170. 

Attorney  acting  as  judge  pro  tempore,  oath,  authority, 
and  powers  of,  §  72. 

Attorney  may  be  selected  to  act  as  judge  pro  tempore, 
§  72. 

Chambers,  powers  at,  §§  1C5,  166. 

Changing  place  of  holding  court,  §§  142,  143. 

Change  of,  for  bias,  etc.,  procedure,  §  170. 

Contempt,   §§  1209-1222.     See  Contempt. 

Decision,  meaning  of,  §  1033. 

Depositions,  may  take,  §  179. 

Directing  sheriff  to  provide  suitable  rooms,  §  144. 

Disqualification  of,  changing  place  of  trial  for,  §  397. 

Disqualification  to  practice  law,  §  171. 

Disqualification  to  sit  or  act,  what  matters  amount  to, 
§  170. 

Disqualification,  waiver  of,  §  170. 

Duty  in  construction  of  contracts  and  statutes,  §  1858. 

Failure  to  attend,  sheriff  or  judge  to  adjourn  to  what 
time,  §  140. 

Incidental  powers  and  duties  of  courts,  §§  128-130. 

Number  of  in  various  counties,  reference  to  acts  relat- 
ing to,  pp.  765,  766. 

Partner,  practicing  law,  not  to  have,  §  172. 

Powers  of,  at  chambers,  §§  165,  166. 

Powers  of,  out  of  court,  §§  176,  1305. 

Powers  of  judicial  officers  in  con-duct  of  proceedings, 
§  177. 

Powers  may  be  enforced  by  contempt  proceedings, 
§  178. 

Presumption  that  judge  acts  within  jurisdiction,  §  1963. 

Probate,  disqualified  to  act,  in  what  cases,  §  1430. 

Probate,  disqualified  to  act,  transfer  of  and  re-transfer 
of  proceedings,  §§  1431,  1433. 

Questions  of  law  addressed  to,  §  2102. 

Rules,  power  to  make,  §  129. 

Rules,  when  take  effect,  §  129. 

Secretary  of,  in  cities  over  200,000,  p.  764,  Stats. 

Subsequent  applications  for  orders  refused,  when  pro- 
hibited, §  182. 

Vacancy  in  office  does  not  affect  proceedings,  §  184. 

Witness  as,  §  1883. 

See  Court;  Justice  of  Peace;  Probate  Court;  Superior 
Judge;  Supreme  Court  Justice. 


940  JTTDGMENT. 

JUDGMENT:   See   Judgment-roll;    Probate    Court. 

Acknowledgment   of   satisfaction   any  judge  or  justice 
may  take,  §  179. 

Actions  on,  how  pleaded,  §  456. 

Adverse  possession  under,  what  constitutes,  §§  322,  323. 

Adverse  claim,  determining,  §§  739  et  seq.     See  Quiet- 
ing Title. 

Affirmative  relief  to  defendant,  §  606. 

Agreed  case,  judgments:    See  Agreed  Case. 

Answer,  absence  of,  what  relief  granted  plaintiff,  §  580. 

Appeal  from:  See  Appeal. 

Appeal  from  orders  after  final,  §  9G3. 

Appeal  may  be  taken  from  what,  §  963. 

Appealability  of  interlocutory  judgments,  §  963. 

Appeal  from,  time  for,  §  939. 

Appeal  from  interlocutory,  time  for,  §  939. 

Appeal,  costs  on  when  judgment  modified,   §  1027. 

Appeal,  reversal  of,  not  decreed  except  for  substantial 
error,  §  475. 

Appealed  to  superior  court,  rendered  in  case,  §  980. 

Arrest  of  debtor,  §  682. 

Associates  in  business,  against,  effect  of,  §  388. 

Attachment,  in,  how  satisfied,  §  550. 

Attorney's    authority    to    acknowledge    satisfaction    of, 
§  283. 

Barred  by  limitation,  execution  on,  §  685. 

Bill  of  exceptions,  settling  after,  §  651. 

Book,  decrees  to  be  entered  in,  §   668. 

Book  to  be  kept  by  clerk,  §  668. 

Causes  submitted  without  action,  in,  §§  1138,  1139,  1140. 

Causes     submitted     without     action,    enfo'cement     of, 
§  1140. 

Clerk,  duty  to  enter  judgment,  §  664. 

Collusion,  impeachment  of  judgment  for,  §  1916. 

Conclusive  as  to  whom,  in  partition,  §  766. 

Conclusiveness  of:    See  Res  Judicata. 

Contempt,  disobedience  of  judgment,  §  1209. 

Contribution  among  debtors,   §   709. 

Copy  of,  as  part  of  judgment-roll,  §  670. 

Contempt,  in,  §  1218. 

Costs  to  be  included  in,  §  1035. 

Counterclaim  exceeds  plaintiff's  demands,  when,  §  666. 
Counterclaim,    judgment    where    afiirmative   relief    de- 
manded, §   666. 
Death  of  party,  after,  §  669. 

Death  of  party,  after,  not  a  lien,  §  669. 


JUDGMENT.  941 

Death  of  party,  when  execution  may  issue  after,  §  686. 

Decedent,  against,  order  of  payment,  §  1643. 

Decedent's  estate,  judgment  not  lien  on,  when,  §§  1504, 
1506. 

Decision  from  which  appeal  may  be  taken  deemed  ex- 
cepted to,  §  647. 

Decision,  meaning  of,  §  1033. 

Decision  means  signing  and  filing  of  findings  of  fact 
and  conclusions  of  law,  §  1033. 

Decision  must  be  written,  §  632. 

Decision  to  be  filed  within  thirty  days  after  submis- 
sion, §  632. 

Default:   See  Default. 

Defined,  §  577. 

Demurrer,  on,  proceedings  after,  §  636. 

Docket  is  what,  §  672. 

Docket,  how  kept,  §  672. 

Docket,  what  to  contain,  §  672. 

Docket,  open  for  inspection,  §  673. 

Docketing,  §  671. 

Dormant,  execution  on,  §  685. 

Enforcing,  manner  of,  §  684. 

Entry  of  judgment  upon  decision,  §  633. 

Estoppel  to  deny,  §§  1908-1915. 

Evidence,  as,  §  1962. 

Execution  on,  §  682. 

Execution  on  dormant,  §  685. 

Expires,  when,  §§  671,  674,  681,  685. 

Facts  found  and  conclusions  of  law  must  be  stated 
separately,  §  633. 

Findings  of  fact  and  law  must  be  stated  separately, 
§  633. 

Foreign  judicial  record,  copy  of,  when  admissible, 
§  1907. 

Foreign  country,  judicial  record  of,  how  proved,  §  1906. 

Former,  evidence  of,  §  1962. 

Former,  to  be  pleaded  when,  §  1962. 

Fraud,  impeachment  of  judgment  for,  §  1916. 

Impeaching  judicial  record,  manner  of,  §  1916. 

Impeachment  of  judicial  records,  grounds  for,  §  1916. 

Interest  on,  §§  682,  1035. 

Interest  Included  in,  §  1035. 

Interlocutory,  appeal  lies  from,  §  963. 

Interlocutory,  decision  deemed  excepted  to,  §  647. 


JUDGMENT. 

Joint  debtor,  proceedings  against  after  judgment, 
§§  989-994. 

Judgment  -booli,  clerk  to  keep,  §  668. 

Judgment-roll:    See  Judgment-roll. 

Judgment-roll,  what  papers  constitute,  §  670. 

Judicial  record,  definition  of,  §  1904. 

Jurisdiction,  burden  of  proving  where  judgment 
pleaded,  §  456. 

Jurisdiction  sufficient  to  sustain,  §  1917. 

Jurisdiction,  want  of,  impeachment  of  judgment  for, 
§  1916. 

Justices'    courts,    in:   See    Justice's    Court. 

Lien,  duration  of,  §  671. 

Lien,  when  begins,  §  671. 

Lien  continues  how  long  in  another  county,  §  674. 

Lien  of  in  another  county,  when  transcript  filed  there, 
§  674. 

Lien  of  estate  of  decedent,  when  not,  §  1506. 

Lien  on  real  property  in  another  county,  §  674. 

Lien,  stay  on  appeal,  effect  on,  §  671. 

Limitation  of  action,  on  reversal  of,  §  355. 

Limitation  of  action  on,  §  336. 

May  be  against  one  party  and  action  proceed  as  to 
others,  §  579. 

May  be  for  or  against  one  or  more  of  the  parties,  §  578. 

May  determine  rights  of  parties  on  each  side  as  be- 
tween themselves,  §  578. 

Merits,  to  be  on,  except  v/lien,  §  582. 

Nonsuit,  grounds  for,  §  581. 

Nonsuit  may'  be  entered  when,  §  581. 

Nonsuit,  §§  581,  582.     See  Nonsuit. 

Occupation  of  land  under,  when  adverse,  §  322. 

Officers,  judgment  against,  how  enforced,  §  710. 

Particular  proceedings:   See  Particular  Title. 

Parties,   when   deemed   the   same,   §   1910. 

Payable  in  kind  of  money  alleged  in  complaint,  §  667. 

Payable  in  kind  of  money  received  by  person  in  fidu- 
ciary relation,  §  667. 


JUDGMENT.  943 

Payable  in  kind  of  money  specified  in  obligation,  §  G67. 

Payable  in  specified  kind   of   money,  notice   at  execu- 
tion sale,  §  692. 
Pleading,  §§  456,  1962. 
Pleading,  jurisdictional  facts,  §  456. 

Presumption  that  judgment  correctly  determines 
rights,  §  19G3. 

Presumption  that  nonconclusive  judicial  record  cor- 
rectly determines  rights,  §   1963. 

Prisoner,  discharge  of,  §§  1143-1154.     See  Prisoner. 

Prisoner,  judgment  remains  in  force  on  discharge  of, 
§  1152. 

Probate  court,  of,  in  general,  what  to  contain,  §  1704. 

Proceedings  after,  against  joint  debtor  not  summoned 
In  original  action,  §§  989-994. 

Receiver  to  carry  into  effect,  §  564. 

Referee's  finding  on,  §  644. 

Relief  from,  for  mistake,  inadvertence,  etc.,  §  473. 

Relief  from  when  defendant  not  personally  served, 
§  473. 

Relief  that  can  be  awarded  plaintiff,  §  580. 

Remitting  to  superior  court  on  case  transferred  to  su- 
preme court,  §  56. 

Remittitur   from    supreme    court,    §    958. 

Rendered  in  cause  appealed  to  superior  court,  force  of, 
§  980. 

Replevin,   in,   alternative,   §    667. 

Res  judicata:   See  Res  Judicata, 

Review  of:   See   Appeal. 

Reviving,  §  685. 

Reviving  in  favor  of  purchaser  under  execution,  §  708. 

Revivor  of,  when  execution  purchaser  evicted,  §  708. 

Satisfaction,  attorney  may  acknowledge,  §  283. 

Satisfaction  of,  acknowledgment  or  indorsement  of, 
§  675. 

Satisfaction  of,  by  attorney,  §  675. 
Satisfaction  of,  by  return  of  execution,  §  675. 
Satisfaction  of,  how  made,  §  675. 


M4  JUDGMENT— JUDGMENT-ROLU 

Setting  aside  in  equity,  §  473. 

Settling  bill  of  exceptions  after,  §  651. 

Sister  state,  judgment  of,  how  enforced,  §  1913. 

Sister  state,  judicial  record  of,  effect  of,  §  1913. 

Sister  state,  judicial  record  of,  how  proved,  §  1905. 

Special  proceeding,  in,  definition  of,  §  1064. 

Special  verdict,  judgment  on  to  be  entered,  §  628. 

Time  to  enter  judgment  on  verdict,  §  664. 

Trial,  deemed  excepted  to,  §  647. 

Time  for  entering,  when  postponed,  §  664. 

Time  for  entering,  when  trial  by  jury,  §  664. 

Time  for  entry,  §  671. 

Transcript  filed  in  any  county,  judgment  becomes  lien 

there,  §  074. 
Transferred  cases,  in,  proceedings  after,  §  400. 

Vacation,  in  what  cases  superior  court  may  vacate  its 

judgment,  §  663. 
Vacation  of,  grounds  for,  §  663. 

Vacation  of,  motion  for,  §  663%. 

Vacated,  judgment  may  be  and  another  judgment  en- 
tered when,  §  663. 

Vacation  of  special  verdict,  judgment  on,  §  663. 

Vacation,  motion  for,  notice  of,  §   663i^. 

Vacation,  motion  for   when  to  be  made,  §  663 1/^. 

Vacation,  relief  from,  time  of  motion  for,  §  473. 

Vacation,  notice  of  intention,  what  to  state,  §  663%. 

Vacation  of,  notice  of  motion  for,  time  to  file,  §  663%, 

Verdict,  judgment  on,  when  to  be  entered,  §  664. 

When  defendant  entitled  to  aihrmative  relief,  §  666. 
JUDGMENT  BY  CONFESSION:    See  Judgment. 
JUDGMENT  BY  DEFAULT:   See  Default. 
JUDGMENT-BOOK  to  be  kept  by  clerk,  §  668. 

JUDGMENT-ROLL  a  part  of  record  on  appeal,  §  661. 
Appellant  must  furnish,  §  950. 
In  cause  submitted  without  action,  §  1139. 
Judgment  on  appeal  to  be  attached  to,  §  958. 


JUDGMEJSIT-ROLL— JUDICIAL    REMEDY.  9ia 

What  constitutes  on  certiorari,  §  1077. 

What  constitutes  on  confession  of  judgment,  §  1134. 

What  constitutes,  on  dissolution  of  corporation,  §  1233. 

What  papers  constitute,  §  670. 
JUDICIAL  DAYS,  what  are,  and  what  are  not,  §§  133-135. 
JUDICIAL  NOTICE,  court  to  declare  to  jury,  §  2102. 

Is  taken  of  what  facts,  §  1875. 

One  of  branches  of  evidence,  §  1827. 

JUDICIAL     OFFICER,     acknowledgments    and    affidavits, 

may  take,  §  179. 

Contempts,  may  punish  for,  §  178. 

Depositions,  may  take,  §  2031. 

Enumeration  of  powers,  §  177. 

Exempt  from  jury  duty,  §  200. 

Incidental  powers  and  duties  of,  §§  176-179. 

In  general,    §§   156-161. 

Jurisdiction,  means  to  carry  into  effect,  §  187. 

Partner  practicing  law,  not  to  have,  §  172. 

Powers  of  as  to  conduct  of  business,  §  177. 

Powers  of,  out  of  court,  §  176. 

Settlement  of  bill  of  exceptions  by,  §  653. 

Vacancy,  effect  of,  §  184. 
JUDICIAL  RECORD  as  evidence,  §§  1905-1907. 

Authentication  of,   §§  1905-1907. 

Copy  of,  of  foreign  country,  §  1907. 

Defined,  §  1904. 

Foreign,  what  must  contain,  §  1906. 

Foreign  country,  how  authenticated,   §   1906. 

Foreign  judgment,  its  effect,  §  1915. 

Jurisdiction  required  to  sustain,  §  1917. 

Justices'  judgment  in  other  state,  how  proved,  §§  1921, 
1922. 

Manner  of  impeaching,  §  1916. 

Of  court  of  admiralty,  §  1914. 

Of  sister  state,  its  effect,  §  1913. 
JUDICIAL    REMEDY:   See  Remedy. 

Code  Civil  Proc— 60 


946  JUDICIAL   SALE— JUROR. 

JUDICIAL  SALE:   See  Execution. 

JURISDICTION:   See    Courts;    Justice's   Court. 

Acquired  at  what  stage  of  proceeding,  §  416. 

Appearance  cures  want  of  service,  §  681. 

Authority  of  court  where  no  procedure  provided,  §  187. 

Change  of  name,  jurisdiction  of  proceeding  for,  §  1275. 

Concurrent,  of  justices  and  superior  courts,  in  what 
cases,  §  113. 

Court  of  impeachment,  of,  §  37. 

Court  first  obtaining  in  guardianship  proceedings  ex- 
cludes jurisdiction  of  other  courts,  §  1796. 

Demurrer  for  want  of,  §  430. 

Judgment  when  amount  in  excess  of,  remitting  excess, 
§  894. 

Justice  of  peace,  of:     See  Justice's  Court,  II. 

Means  to  carry  into  effect,  §  187. 

Orders  and  decrees  of  probate  court  need  not  recite 
jurisdictional   facts,   §   1704. 

Pleading  judgment,  jurisdictional  facts,   §  456. 

Presumption  in  favor  of,  §  1963. 

Presumption  that  court  or  judge  acts  within,  §  1963. 

Sufficiency  of,  to  sustain  judgment,  §  1917. 

Superior   court:     See   Superior   Court. 

Supreme  court:     See  Supreme  Court. 

Transferred  cause,  §  399. 

V/ant  of,   impeachment  of  judgment  for,   §  1916. 

Y^^'aived,  not  by  failure  to  object,  §  434. 

What  constitutes,  §  1917. 

JUROR:    See  Jury. 

Admonition,  on  separation,  §  611. 

Affidavit  of,  of  misconduct  of  jury,  §  657. 

Attendance  of,  compelling  by  attachment,  §  238. 

Attendance  of,  how  enforced,  §  238. 

Ballot  box,  §§  215,  219. 

Challenge,  either  party  may,  §  601. 

Challenge,  how  tried,  §  603. 

Challenge,  peremptory,  how  taken,  §  601. 

Challenge,  peremptory,  number  of,  §  601. 

Challenge  is  peremptory  or  for  cause,  §  601. 

Challenge  for  cause,  grounds  for,   §  602. 

Challenge,  parties  to  join  in,  when,  §  601. 

Challenge,  who  may  be  examined  as  witness  on,  §  613. 

Challenge  in  justices'  courts,  §  885. 

Clerk,  when  shall  draw,  §  215. 


junoR.  sir 

Clerk's  certificate  and  list  of,  to  be  delivered  to  sher- 
iff, §  219. 
Clerk's  certificate  of  drawing,  §  219. 
Competent,  who  are,  §  198. 
Competent,  who  are  not,  §  199. 
Contempt  by,  §  1209. 

Contempt,  conversing  about  case,  §  1209. 
Contempt,  receiving  communication  and  not  divulging 

it,  §  1209. 
Deliberation  of,  how  conducted,  §  613. 
Deliberation  of,   what  papers,   etc.,   may  and   may   not 

take  with,  §  612. 
Deliberation,   three-fourths   can  find   verdict,   §   613. 
Deposit  of  names  in  grand  and  trial  jury-box,  §  209. 
Drawing,  superior  judge  may  direct  jury  to  be  drawn, 

§  241. 
Drawing,  clerk,  when  to  draw,  §  215. 
Drawing,  by  clerk,  how  conducted,  §§  219,  600. 
Drawing,  from  box,  §  600. 

Drawing,  names  to  be  drawn  from  jury-box,  §  211. 
Drawing,    by     clerk,     preservation     of    ballots     drawn, 

§   219. 
Drawing,  by  clerk,  rejection  of  names,  §  219. 
Drawing,  clerk's  certificate  of,   §  219. 
Drawing,  for  courts  of  record,  §§  214-220. 
Drawing,    and    summoning    fortliwith,    how    and    when 

done,    §    226. 
Drawing,  names  of  jurors  not  drawn  to  be  replaced  in 

box,  §  220. 
Elisor,  summoning  of  jurors  by,  §§  226,  227. 
Elisor,  compensation  for  summoning  jurors,  §  228. 
Excuse  from  service,  grounds  for,  §  201. 
Exempt  from  jury  duty,  who  are,  §  200. 
Exemption  to  serve  as,  affidavit  of,  §  202. 
Exemption  to  serve  as,  how  claimed,  §  202. 
Fine  for  nonattendanee,  §  238. 
Inquest,  how  summoned,  §  235. 
Justices'  or  police  courts,  for,  how  summoned,  §§  230, 

231. 
Justice's   or   police   court,    summoning,    return   of    ofii- 

cer,  §  232. 
List  of,  by  v/hom  and  when  made,  §  204. 
List  of,  clerk  to  dispose  of  how,  §  209. 
List  of,  clerk's  duty  as  to,  §  209. 
List  of,  how  made  and  kept,  §§  205,  206, 


94g  JUROR— JURY. 

List  of,  number  of  names,  §  206. 

List  of,  to  be  placed  with  county  clerk,  §  208. 

Names  of  jurors  not  drawn   to  be  placed  on   list  for 

succeeding  year,  §  211. 
Oath  of,  §  604. 

Order  of  judge  for  drawing  jury,  §  214. 
Order  for,  clerk  when  to  draw,  §  215. 
Polling,   §   618. 

Polling,  disagreement  on,  proceedings,  §  618. 
Presumption    that    all    matters    within    issues    passed 

upon,   §   1963. 
Qualifications  and  exemptions  of,  §§  198-202. 
Question  of  fact  to  be  tried  by,  §  2101. 
Referee,  disqualified  as,  §  641. 
Regular  jurors  to  serve  one  year,  §  210. 
Selecting  and  returning  for  courts  of  record,  §§  204-211. 
Selection  of,  §  204. 
Selection  of,  who  to  make,  §  204. 
Selection  of,  how  made,  §  205. 
Selection  of,  in  proportion  to  population,  §  206. 
Selection  of,     lists  to  contain  how  many  names,  §  206. 
Selection  of,  who  may  be  selected,  §  205. 
Separation,  §§  611,  613, 
Sheriff  to  summon,  how,  §  225. 
Sheriff  to  summon,  return  of  list,  §  225. 
Sick,  proceedings  in  case  of,  §  615. 
Summoning,  for  courts  not  of  record,  §§  230-232. 
Summoning,  for  courts  not  of  record,  officer's  return, 

§  232. 
Summoning,  for  courts  of  record,  §§  225-228. 
Summoning,  for  justices'  or  police  courts,  §  230. 
Summoning,  to  complete  panel,  §  227. 
Summoning  juries  of  inquest,   §  235. 
Superior  judge  may  direct  jury  to  be  drawn,  §  241. 
To  serve  one  year,  §  210. 
Verdict  of:     See  Verdict. 

When  may  be  drawn  and  summoned  forthwith,  §  226. 
Witness,  as,  §  1883. 
Who  competent  to  act  as,  §  198. 
Who  exempt  from  jury  duty,  §  200. 
Who  may  be  excused  from  jury  duty,  §  201. 
Who  not  competent  to  act  as,  §  199. 

JURY:   See  Jurors. 

Adjournment  of  court  while  jury  out,  §  617. 


JURY.  M' 

Admonition,  on  separation,  §  611. 

Changing  place  of  trial,  for  impartial,  §  397. 

Courts  open  any  day  to  discharge,  §  134. 

Defined,  §  190. 

Deliberation  of,  how  conducted,  §  613. 

Deliberation  of,  what  papers,  etc.,  may  and  may  not 
take  with  them,  §  612. 

Deliberation,  three-fourths  can  find  a  verdict,  §  613. 

Discharge  before  verdict,  retrial  of  cause,  §  616. 

Docket  of  justice  of  peace  must  contain  demand  for, 
§  911. 

Drawing:   See  Jurors. 

Exempt  from  jury  duty,  who  are,  §  200. 

Forcible  entry  and  detainer,  in,  §  1171. 

Formation  of,  §  600. 

Grand  jury    defined,  §  192. 

Grand  jury,  §§  241-243.     See  Grand  Jury. 

Impaneling,  in  courts  not  of  record,  §§  250,  251. 

Impaneling,  in  criminal  case  must  be  as  prescribed  by 
Penal  Code,  §§  247,  251. 

Imipaneling,  in  justices'  and  police  courts,  manner  of, 
§§  250,  251, 

Impaneling  in  will  contest,  §  1313. 

Impaneling  grand  juries,  §§  241,  242. 

Impaneling  jury  of  inquest,  §  254. 

Impaneling  trial  jurors  in  courts  of  record,  §§  246,  247. 

Impaneling  trial  jury,  manner  of,  §§  240,  247. 

Inquest,  how  summoned,    §   235. 

Inquest,  jury  of,  defined,   §  195. 

Instructing,   §   2061.     See   Instruction. 

Issues  to  be  tried  by,  §  592. 

Judges  of  effect  of  evidence,  in  general,  §  2061. 

Justice's  court,  in:  See  Justice's  Court;  XVI. 

Kinds  of,  §  191. 

Mandamus,  in,  §  1090. 

Misconduct  of,  affidavit  of  jury,  §  657. 

Misconduct  of,  new  trial,  §  657. 

Must  find  amount  of  recovery,  when,  §§  626,  627. 

Number  of  grand  jury,   §  192. 

Number  of  trial  jury,  §  194. 

Ordinance,  action  for  violation  of,  jury  trial,  §  1744. 

Panel,  summoning  jurors  to  complete,  §  227. 

Police  court,  when  defendant  entitled  to,  §  932. 

Polling,  §  618. 

Postponement  of  trial  in  justice's  court  when  jury  de- 
manded,   §    874. 


950  JURT— JUSTICE   OF    PEACE. 

Presumption  that  all  matters  within  issues  were  passed 

upon    by,  §  1963. 
Questions  of  fact,  when  to  be  decided  by,  §  2101. 
Quieting  title,  jury  trial  in  action  for,   §  738. 
Recovery,  must  find  amount  of,  when,  §§  626,  627. 
Separation,  §§  611,  613. 
Sick  juror,  proceedings  in  case  of,  §  615. 
Trial  by,  of  issues  in  probate  court,  §  1717. 
Trial  by,  of  special  issue  not  made  by  pleadings,  §  309. 
Trial  by,  on  petition  for  revocation  of  probate,  §  1330. 
Trial  by,  when  and  how  waived,  §  631. 
Trial  jury   defined,   §    193. 
Trial:   See  Trial. 

Verdict  of,  §§  624-682.     See  Verdict. 
Verdict,  how  declared,  §  618. 
Verdict,  informal,  proceedings  on,  §  619. 
Verdict,  prevented,  retrial  of  cause,  §  616. 
Verdict,  sealed,  §  617. 

Verdict,  sealed,  rendered  during  adjournment,  §  617. 
.    Verdict,  three-fourths  can  find,  §§  613,  618. 
View  by,  of  premises,  §  610. 
Waiver  of,  §  592. 
Waived,  how,  §  631. 
Will  contest,  jury  trial  in,  §  1312. 
See  Jurors. 

JUSTICE  OF  PEACE:    See  Justice's  Court. 

Acknowledgment,  aflBdavit,  deposition,  may  take,  §  179. 

Affidavit,  may  take.  §  2012. 

Attachment,  issuance  of:   See  Justice's  Court,  VIII. 

Attorney,  must  be  where,  §  103. 

Blanks  must  be  filled  in  all  papers  issued  by,   except 
subpoenas,  §  920. 

Cannot  practice  law  before  another  justice,  §  103, 

Change  of,  for  bias,  etc.,  procedure,  §  170. 

Citizen,  justice  must  be,  §  159. 

Clerk,  §§  86  et  seq.     See  Justice's  Clerk. 
•    Constable  may  not  act  as  attorney,  §  842. 

Depositions    issuing    from    justice's    court,    how    taken 
§  2024. 

Deposition,  may  take,  §  179. 

Disability   of,    attendance   of   another   justice,   adjourn- 
ment, resuming  jurisdiction,  §  922. 

Disability   of,   attendance   of  another  justice,   entry  of 
proceedings,  §  922. 

Disability  of,  attendance  of  another  justice  on  his  be- 
half, §  922. 


JUSTICE   OF   PEACE.  951 

Disability  of,  attendance  of  another  justice,  powers  of 
§  922. 

Disqualification  of,  what  matters  amount  to,  §  170. 

DisqualiJicatlon  to  practice  law,  §§  96,  103,  171. 

Disqualification,  waiver  of,  §  170. 

Disqualified,  transfer  of  cause  to  another,  §  398. 

Eligibility,  §  103. 

Expiration  of  office,  must  deliver  papers  and  dockets  to 
successor,  §  914. 

Fees,  collecting,  reporting  and  paying  into  treasury, 
'      §  103. 

Holding  court  for  another,  §  105. 

Jurisdiction,   §   103. 

Mayor  not  to  act  as  in  cities  over  10,000,  p.  763,  Stats. 

Moneys  collected,  must  receive  and  pay  same  to  par- 
ties, §  921. 

Not  to  have  law  partner,  §§  103,  172. 

Not  to  practice  before  justices'  court,  §  171. 

Number  of,   §§   85,  103. 

Office,  to  be  provided  with,   §  103. 

Qualifications  of,   §  159. 

Powers  and   duties  generally,  §   103. 

Residence  of,   §   159. 

Salaries,  how  paid,  §  103. 

Salaries  in  cities  and  counties  over  one  hundred  thou- 
sand, §  103. 

Salaries  of  in  certain  cities,  §§  97,  103. 

Salaries  to  be  sole  compensation,  §  103. 

Succession  of  justices,  on  change  of  boundaries,  §  107. 

Succession  of  justices,  transfer  of  records,  etc.,  §  98. 

Successor,  when  superior  court  shall  designate,  §  918. 

Successors  of  others,  what  justices  are,  §§  98,  107,  917. 

Successor  has  authority  of  predecessor,  §  916. 

Term  of  office,   §  110. 

Transfer  of  action  to  another  court,  manner  of,  §§  398, 
399. 

Transfer  of  books,  papers,  etc.,  to,  p.  763,  Stats. 

Vacancies,  how  filled,  §  111. 

Vacancy,  papers  and  dockets  to  be  deposited  where, 
§  915. 

Vacancy,  proceedings  before  successor  appointed,  §  915. 

In  cities  and  counties. 

Absence  or    disability,     reassignment   and   transfer   ot 

action,    §   90. 
Clerk  of  not  to  act  as  attorney,  §  96. 


i  Jt'STICE  OF  PEACE. 

Disqualification  to  act  as  attorney,  §§  96,  103. 

Election  of,  §  85. 

Fees,  payment  into  treasury,  §  91. 

Minutes  of  proceedings,  to  keep,  §  93. 

Minutes,  to  be  certified,  returned  and  filed,  §  93. 

Number  of,   §   85. 

Number  of  sessions,  §  85. 

Oflices  and  office  hours,   §   88. 

Office  rooms,  how  provided,  §  88. 

Offices,  expense  of,  how  met,  §  88. 

Pleadings  and  papers  to  be  certified,  returned  and  filed, 

§  93. 
Presiding,  appointment  and  removal,  §  85. 
Presiding,  assignment  of  causes  by,  §§  89,  90. 
Presiding,  disability  or  absence  of,  substitute,  §  85. 
Presiding  justice,  salary  of,  §  97. 
Rooms,  attendants  and  supplies  to  be  furnished,  §  88. 
Salary  of,    §    97. 

Sheriff  and  deputies,  ex  oflacio  oflBcers,  §  87. 
Sheriff  may  be  directed  to  furnish  rooms,  etc.,  §  88. 
Successors  of  others,  what  justices  are,  §  98. 
Successors,  powers  and  jurisdiction  of,  §  98. 
Supervisors  to  furnish  suitable  rooms,  §  88. 

in  townships. 

At  least  one  in  each-  township,  §  103. 

Change  in  boundaries  of  township  or  county,  succes- 
sion of  justices,  §  107. 

Disqualification  to  practice  law,  §  103. 

Election  of,  §  103. 

Eligibility,  §  103. 

Fees,  collection,  report  and  payment  into  treasury, 
§  103. 

Holding  court  for  another  justice,  effect  of  proceedings, 
§  105. 

Holding  court  for  another,  power  of,  §  105. 

Holding  court  for  another,  entries  in  docket,  §  105. 

Number  of  courts,   §   103. 

Number  of  justices,  §  103. 

Salary,  how  paid,  §  103. 

Salary  of,  §  103. 

Salary  to  be   sole   compensation,   §   103. 

Successors  of  others,  what  justices  are,  §  107. 

Successor,  on  change  of  boundaries,  §  107. 

What  justice  may  hold  court  for  another,  §  105. 

Where  held,  §  104. 


JUSTICES'      CLERK-JUSTICES'      COURTS.  953 

JUSTICES'  CLERK,  appointment,  §  86. 
Attorney,  •disqualification  to  act  as,  §  96. 
Bond  and  oath,  §  86. 
Bond,  additional,  §  86. 
Cities  and  counties  of  over  200,000,  clerk  and  assistants 

in,  pp.  776,  777  Stats. 
Deputies,  appointment  of,  §  86. 

Deputies,  authority  of,  to  take  affidavits  and  oaths,  §  86. 
Deputies,  liability  for,  §  86. 
Disqualification  to  act  as  attorney,  §  96. 
Docket,  duty  to  keep,  §  93. 
Fees  paid  in  actions,  duty  as  to,  §  91. 
Minutes  of  proceedings,  filing,  §  93. 
Oath  and  bond,  §  86. 
Office  hours,  §  88. 

Record  of  proceedings  of  court,  shall  keep,  §  89. 
Salary,  §  97. 

Salary  of  deputy  clerk,  §  97. 
Subpoenas,  issue  by  clerk,  §  87. 
Term  of  office,  §  86. 

JUSTICES'  COURTS. 

I.     Nature   of;    holding   of   and    sessions;    code  pro- 
visions applicable. 
II.     Jurisdiction. 
Hi.     Attorneys  in,  who  may  act  as. 
IV.     Actions,  how  commenced;   assignment  of  causes 
in. 

V.     Pleadings. 

VI.  Counterclaim. 

VII.  Summons. 

VIII.  Attachments;    arrest.  I 

IX.  Process;    subpoenas. 

X.  Dockets;    records;    minutes. 

XI.  Compromise;    dismissal. 

XII.  Place  of  trial. 

Xiil.  Continuance. 

XIV.  Trial;    practice;    rules;    Issues. 


J  JUSTICES'    COURTS,   I.   11. 

XV.  Appearance;  appearance  by  guardian. 

XVI.  Jury. 

XVII.  Contempt. 

XVIII.  Particular  actions  In. 

XIX.  Verdict. 

XX.  Judgments. 

XXI.  Executions. 

XXII.  Costs;  fees;  undertaking. 

XXIII.  Appeals. 

See  Justices'  Clerk;   Justice  of  Peace. 
Berkeley,  act  creating  in,  p.  778,  Stats. 

I.  Nature  of;    holding  of  and  sessions;   code   provisions 

applicable. 
Always  open,  §§  89,  104. 

Are  courts  of  peculiar  and  limited  jurisdiction,  §  925. 
Code  provisions  applicable  to,  §  925. 
Number  of  in  townships,  §  103. 
Place  of  holding,  §  104. 

Record,  justices'  courts  are  not  courts  of,  §  34. 
Sessions,  number  of,  §  85. 
Sessions,  where  held,  §  104. 

II.  Jurisdiction. 

Action  for  collection  of  licenses,  §  103. 

Action  in  wrong  jurisdiction,  objection  to,  appeal,  §  890. 

Action  In  wrong  jurisdiction,  objection  to,  waiver,  §  890. 

Certifying  cases  to  superior  court,  §  92. 

Civil,  §  112. 

Civil,  includes  what  causes,  §  112. 

Oitles  and  towns,  jurisdiction  and  powers,  pp.  777,  778 

et  seq. 
Concurrent  with  superior  court,  §  113. 
Concurrent    with    superior    court    in    cases   of    forcible 

entry,  §  1163. 
Does  not  extend  to  ships,  seamen's  wages,  etc.,  §  114. 
Evidence  not  admissible  upon  what  questions,  §  838. 
Forcible  entry  and  detainer,  jurisdiction  in,  §  838. 
Has  over  what  offenses,  §  115. 
In  cities,  §  103. 
In  general,  §§  89,  108. 
Mandamus,  cannot  Issue,  §  1085. 


JUSTICES'    COURTS,    II,    III,    IV,    V.  95b 

Misdemeanors,  §  115. 

Not   to   trench   upon   jurisdiction   of  courts  of  record 

§  114.  ' 

Ordinance,  jurisdiction  for  violation  of,  §  103 
Restricted,  §  114. 
Territorial  extent,   §§  94,  106. 
Transfer    to    superior    court,    jurisdiction    of    superior 

court.  §  838. 
Violation  of  ordinance,  §  103. 

When  amount  found  due  exceeds,  excess  remitted,  §  894. 
Wrong,  objection  to  action  in,  §  890. 

III.  Attorneys    in,  who   may  act  as. 

Letter  of  attorney  to  act  as  counsel  in  justice's  court, 

§  9G. 
License  not  necessary  to  practice,  §  281. 
Who  may  act  a.s,  §  842. 
Who  may  not  act  as,  §  96. 

IV.  Actions,  how  commenced;   assignment  of  causes  in. 

Action  commenced  by  iiling  complaint,  §  839. 
Assignment  of  causes  by  presiding  justice,  §§  89,  90. 
Reassignment  and  transfer  of  actions,  §  90. 

V.  Pleadings. 
Actions  in,  form,  §  89. 
Actions,  how  entitled.  §  89. 

Amendment  of  pleadings,  adjournment,  §  859. 

Amendment  of  pleadings,  costs,  §  859. 

Amendment  of  pleadings,  in  general,  §  859. 

Amendment  of  pleadings,  on  demurrer,  §  858. 

Amended  pleading,  adverse  party  may  answer  or  de- 
mur, §  860. 

Amended  pleading,  answer  or  demurrer  to.  time  to 
file,  §  860. 

Answer  in,  §  852. 

Answer  in.  plaintiff  may  demur  to,  when,  §  857. 

Answer,  when  demurrer  overruled,  §  858. 

Answer  may  contain  what,  §  855. 

Answer,  in  general:    See  Answer. 

Complaint  in,  §  852. 

Complaint,  action  commenced  by  filing,  §  889. 

Complaint,  date  of  filing,  indorsement  of,  §  840 

Complaint  defined,  §  853. 

Complaint,  filing,  commences  action,  §  839, 

Complaint  may  be  copy  of  Instrument,  9  868. 


i  JUSTICES-    COURTS,    V,    VI,    VII. 

Compromise,  costs,  §  895.  j 

Complaint,  in  general:   See  Complaint.  { 

Demurrer,  §   852. 

Demurrer,  amending  pleadings,  §  858. 

Demurrer,  judgment  by  default  after,  §  872. 

Demurrer  to  the  answer,  §  852. 

Demurrer  to  answer,  grounds  for,  §  857. 

Demurrer  to  answer,  proceedings  on,  §  858. 

Demurrer  to  answer,  time  for,  §  857. 

Demurrer  to  complaint,  proceedings  on,  §  858. 

Demurrer  to  complaint,  time  for,  §  854. 

Demurrer,  In  general:  See  Demurrer. 

Pleading  account,  manner  of,  §  886. 

Pleadings,  amendment  in  general,  §  859. 

Pleadings,  amendment  on  demurrer,  §  858. 

Pleadings,  entry  of  oral,  §  851. 

Pleadings,  filing  of,  §§  89,  851. 

Pleadings,  form  of,  §  851. 

Pleadings,  oral,  §  851. 

Pleadings,  verification,  §  851. 

Pleadings  in,  are  what,  §  852. 

Pleading    written     instrument,    genuineness    almltted, 

when,  §  887. 
Pleading  written  instrument,  manner  of,  §  886. 
Pleadings,  in  general:   See  Pleadings. 

VI.  Counterclaim. 

Answer  may  contain,  §  855. 
Omission  to  set  up,  fatal,  §  856. 
Pleading  written  instrument,  §  886. 

VII.  Summons. 

Alias  summons,  §§  846,  847. 

Alias,  number  of,  §  847. 

Alias,  when  may  issue,  §  846. 

Blanks  must  be  filled,  §  920. 

By  whom  may  be  served,  §  849. 

Cannot  be  served  out  of  county,  except  in  what  casos, 

§  848. 
Directed  to  defendant,  §  844. 
How  issued,  §  844. 
How  served,  §  849. 

How  served  outside  of  county,  §  849. 
Indorsement  of  attorney's  name,  §  844. 
In  general:     See  Summons. 
May  be  served  out  of  county,  in  what  cases,  9  848. 


JUSTICES'     COURTS,     VII.    VIII.  96' 

May  be  waived,  how,  §  841. 

Must  contain,  what,  §  844. 

Must  issue  within  year,  §  840. 

Parties,  summons  must  name,  §  844. 

Process:     See  also  post,  IX. 

Return  of,  §§  87,  849. 

Service  by  publication,  §  849. 

Territorial  limitation  on  service  of,  §  848. 

Time  for  appearance,  specification  of,  §  845. 

To  be  issued  without  blanks,  §  920. 

To  be  served  out  of  county,  certificate  to,  §  849. 

VIII.     Attachments;    arrest. 

Arrest,   entry  of  judgment  when  defendant  subject  to, 
§  893. 

Arrest  of  defendant,  affidavit  for,  §  862. 

Arrest  of  defendant,  certificate  of,  §  864. 

Arrest  of  defendant  for  embezzlement,  §  861. 

Arrest  of  defendant  for  fraud,  §  861. 

Arrest  of  defendant,  grounds  for,  §  861. 

Arrest  of  defendant  in  action  for  fine  or  penalty,  §  861. 

Arrest  of  defendant,  officer  must  notify  plaintiff,  §  864. 

Arrest  of  defendant,  undertaking  for,  §  862. 

Arrest  of  defendant,  when  may  be  ordered,  §  861. 

Arrest  where  defendant  about  to  depart  state,  §  861. 

Arrested  defendant,  custody  of,  §  865. 

Arrested  defendant,  proceedings  if  justice  absent,  dis- 
qualified, etc.,  §  863. 

Arrested    defendant    must    be    taken    before    justice    at 
once,  §  863. 

Attachment,  affidavit  for,  §  866. 

Attachment,  affidavit  what  to  state,  §  866. 

Attachment,  direction  of  writ  to  sheriff,  §  868. 

Attachment,  general  sections  of  code  apply  to,  §  869. 

Attachment,  issuance  of,  §  866. 

Attachment,  substance  of  writ,  §  868. 

Attachment  to  be  issued  on  affidavit,   §   866. 

Attachment,  to  be  served  out  of  the  county,,  certificate 
to,  §  868. 

Attachment,  undertaking  on,  §  867. 

Attachments,  form  of  and  contents,  §  868. 

Attachments,    several    writs    may  issue  at  same  time, 
§  868. 

Attachments,  to  whom  directed,  §  868. 


!  JUSTICES'    COURTS,    IX,    X,    XI. 

IX.  Process;    subpoenas. 

All   papers   except    subpoenas    to    be    issued    without 

blanks,  §  920. 
Process,. by  whom  issued,  §  91. 
Process,  on  whose  order  to  issue,   §  91. 
Process,  over  what  territory  reaches,  §§  93,  106. 
Process,  returnable  to  whom,  §  89. 
Process,  service  of,  by  sheriff  and  deputy,  §  87. 
Process  may  issue  to  any  part  of  county,  §  919. 
Process  upon  docket  of  predecessor,  §  916. 
Subpoena,  clerk  may  issue,  §  87. 
Subpoena  may  issue  to  any  part  of  county,  §  919. 
Subpoenas,  issuance  and  service  of,   §  87. 
Summons:     See  ante,  VII. 

X.  Dockets;   records;   minutes. 

Docket,  a  public  record,  §§  93,  914. 

Docket,  clerk  to  keep  and  what  to  contain,  §  93. 

Docket,  deposited  where  on  vacancy  and  before  suc- 
cessor appointed,  §  915. 

Docket,  entries  in  time  of  making,  §  912. 

Docket,  entries  in,  force  and  effect  of,  §  93. 

Docket,  entries  prima  facie  evidence,  §  912. 

Docket,  how  kept,  §  93. 

Docket,  index  to  docket  must  be  kept,  §  913. 

Docket,  index  to,  how  kept,  §  913. 

Docket,  to  contain  what,  §§  911,  913. 

Docket  must  be  delivered  to  successor  or  county  clerk, 
§  914. 

Docket  of  predecessor,  process  or  execution  on,  §  916. 

Filing  papers  and  pleadings,  §  89. 

Minutes  of  proceedings,  justice  shall  take  and  certify 
to  clerk,  §  93. 

Papers  to  be  kept  as  public  records,  §  914. 

Record  of  proceedings  kept  in  clerk's  office,  §  89. 

Transcript  of  entries  in  docket  prima  facie  evidence, 
§  912. 

XI.  Compromise;  dismissal. 

Compromise,  effect  of  accepting  offer  to,  §  895. 
Compromise,  effect  of  refusing  offer  to,  §  895. 
Dismissal   of  action  without  prejudice,   §   890. 
Dismissal,  actions  may  be  dismissed  when,  §  890. 
Dismissal,  voluntary,  §  890. 


JUSTICES'    COURTS,    XII,    XIII. 


as'j 


XII.     Place  of  trial. 
Changing,  affidavits,  §  833. 
Changing,  because  of  interest,  §  90. 
Changing,  can  be  changed  but  once,  §  834. 
Changing,  for  disqualification,  §  833. 
Changing,  grounds  for,  §  833. 
Changing,  notice  of  trial,  §  836. 
Changing,  proceedings  after,  §  836. 
Changing,   to   what  court  cause    may    be    transferred, 

§   835. 
Changing,  transmitting  papers,  §  836. 
Claim  and  delivery,  where  to  be  brought,  §  832. 
Generally,  §  832. 

In  v/hat  township  or  city,  §  832. 
Nonresident,   action   against,  to   be   commenced   where, 

§  832. 
Replevin,  action  in,  to  be  commenced  where,  §  832. 
Township  or  city,  action  may  be  commenced  in  what, 

§    832. 
Transfer  of  proceedings,  §  90. 
Transfer  to   superior  court,    in    what    cases    required, 

§   838. 
Transfer  to  superior  court,  proceedings  on,  §  838. 


XIII.     Continuance. 

Continuance,  admission  of  evidence,  effect  of,  §   876. 

Continuance,  affidavit  and  showing  necessary,   §  876. 

Continuance,  depositions  of  witnesses  present,  §  876. 

Continuance,  grounds  of,  §  876. 

Continuance,  length  of,   §   876. 

Continuance,  length  of  where  granted  on  court's  own 
motion,  §  874. 

Continuance  for  more  than  ten  days  unless  upon  un- 
dertaking not  granted,  §  877. 

Continuance,  where  defendant  under  arrest,   §  876. 

Deposition  of  witness,  on  postponement  of  trial,  §  876. 

Trial,  adjournment,  §  873. 

Trial,  court  may  postpone  of  own  motion,  when,  §  874. 

Trial,  postponement  by  consent  of  parties,  §  875. 

Trial,  postponement  by  court  of  own  motion,  grounds 
for,  §   874. 

Trial,  postponement,  deposition  of  witness,  §  876. 

Trial,  postponement  for  amendment  of  pleadings, 
§   874. 

Trial,  postponement  for  want  of  testimony,  §  876. 


)  JUSTICES'    COl'RTS,    XIII.    XIV.    XV. 

Trial,  postponement  for  want  of  testiraony.  affidavit  as 
to  evidence,  §  876. 

Trial,  postponement  for  want  of  testimony,  when  de- 
nied,  §   876. 

Trial,  postponenient  upon  application  of  arrested 
party,   undertaking,  §  876. 

Trial,  postponement  upon  application  of  party,  grounds 
for,  §  876. 

Trial,  postponement  upon  application  of  party,  how 
obtained.  §  876. 

Trial,  postponement  upon  application  of  party  under 
arrest.  §  876. 

Trial,   postponement   when   jury   demanded.    §    874. 

XIV.  Trial;    practice;    rules;    issues. 

Evidence  not  admissible,  upon  what  questions.  §  838. 

Hearing,  date  of  to  be  entered  in  docket.  §  850. 

Hearing,  fixing  day  of,  §  S50. 

Hearing,  notice  of  to  be  given.  §  850. 

Hearing,  notice  of.  form  oi,  §  850. 

Hearing,  notice  of,  date  of  mailing  to  be    entered    In 

docket.  §  850. 
Hearing,  notice  of,  service  of,  §  850. 
Hearing,  notice  of,  returning  and   filing,   §   850. 
Issues  classified,  §  878. 
Issues  defined,   §   878. 
Issues,  how  arise.  §  878. 
Issue  of  fact,  how  raised.  §  880. 
Issue  of  law.  how  raised,  §  879. 
Issue  of  fact  by  jury,  unless  waived,  §  882. 
Issue  of  law  triable  by  court,  §  880. 
Notice  of  trial,  form  and  service,   §  850. 
Notice  of  trial,  return  and  entry  of,  §  850. 
One  hour  in  which  to  appear  after  time  fixed  In  notice, 

§  850. 
Practice  and  rules,  §§  93,  95. 
Practice  and  rules,  limitation  on,  §  95. 
Rules,  when  to  go  into  effect,  §  95. 
Trial  may  proceed  when  party  fails  to  appear,  §  8>14. 
Trial  must  commence  within  hour,  §  873. 
Trial,  notice  of.  form  and  service  thereof,  §  850. 
Trial,  notice  of.  when  change  of  venue.  §  836. 
Trial,  time  when  must  be  commenced,  §  873. 

XV.  Appearance;  appearance  by  guardian. 
Appearance,  failure  of,  trial  may  proceed  on,  §  884. 


JUBTICE.S'    COI'ltTK,    XV,    XVI,    XVII  Kl 

Appearance,  hour  for,  §  850. 
Appf;ar;inf;f;,  fixing  time  for  trial,  {  850. 
Appearaijf;e,  parti<;fi  entitled  Ut  one  lioiir  for.  5  850. 
App«-aranee  of  defendant,  lime  for,  §  845. 
Appearance,  voluntary,  place  of  trial,  §  832. 
Guardian  ad  litem,  how  appointed  for  defendant,  5  843. 
Guardian   ad   litem,  how  appointed   for  plaintiff,   5  843. 
Guardian  may  ajipear  for  Infant  or  lunatic,  §  843. 
Infant,  may,  appear   by  g'lardian,   g   81.'{. 
Insane  person  may  appear  by  guardian,  §  843. 
Parties  may  appear  in  per8<^>n  or  by  attorney,  S  842. 

XVI.     Jury. 

lK)ck<i\   must  contain  names  of  jury,  and  demand  for, 

8  911. 
Impaneling,  manner  of,  §5  2.^0,  251. 
Jurors,  challenges,  peremptory  or  for  cause,  S  885. 
Jurors,  challenges,  three  peremptory  allowed,  §  885. 
Jurors,   challenges   for   cause    Uj   be   tried    by    justice, 

§  885. 
Jurors,  challenge  for  cause,  grounds  for,  5  885. 
Jurors,  how  summoned,  §§  230,  231. 
List  of  jurors  summoned  to  be  called,  S  250. 
Manner  of  impaneling,  §  251. 
Names  tf>  be  drawn  from  box,  §  250. 
Names  trj  be  written  on  slips,  and  foldf-d  and  placed 

In  box,  5  250. 
ProceediuKS    in    forminc,    {    250. 
Summoning  of,  officer's  return,  §  232. 
Waived  by  consent.  §  883. 
Waived  by  failure  to  appear,  §  883. 
Waived  by  failure  to  demand,  §  883, 
Waived,  how,  §  883. 

XVil.     Contempt. 
Conviction   must  be  entered  in  docket,  5  910. 
Disobedience  to  order  or  process,  §  906. 
Disorderly    conduct,    §    90C. 
Pine  or  Imprisonment  for,  §  909. 
In  presence  of  justice,  proceedings  for,  §  907. 
In  presence  of  justice,  punished  summarily,  §  907. 
In  what  cases  justice  may  punish  for,  §  906. 
Not  in  presence  of  justice,  proceedings  for,  §  908. 
Punishment  for,  §  909. 
R<^;8cuing  person  or  property,  §  906. 

Code    f'lvll    Prfx;.— «1 


M2  JUSTICES*    COURTS,    XVII,    XVIU,    XIX,    XX. 

What  acts  are,  §  906. 

Witnesses,  disobedience  by,  §  906. 

XVIII.  Particular  actions  in. 

Account,  action  on,  exhibition  and  inspection  of,  §  886. 

Account,  action  on,  furnishing  copy,  §  886. 

Bill  of  particulars,  §  454. 

Claim  and  delivery  in,  code  sections  applicable,  §  870. 

Genuineness  of  instrument  sued  on,  admitted,  when, 
§  887. 

Joint  obligation,  action  on,  service  outside  of  county, 
§  848. 

Mandamus,  cannot  issue,  §  1085. 

Replevin,  §  870. 

Written  instruments,  action  on,  exhibition  and  inspec- 
tion, §  886. 

Written  instruments,  action  on,  furnishing  copy,  §  886. 

XIX.  Verdict 

Docket  must  contain,  §  911. 

Judgment  on,  to  be  entered  at  once,  §  891. 

XX.  Judgments. 

Abstract,    filing  in  county  of     defendant's    residence, 

§  905. 
Abstract  of  judgment,  filing  and  docketing  in  superior 

court,  §  898. 
Abstract  of  judgment,  form  of,  §  897. 
Abstract  of  judgment  must  be  recorded  to  create  lien 

on  lands,  §  900. 
By  default,  amount  of,  §  871. 
By  default,  proceedings  on,  §  871. 
By  default,  relief  from,  time  to  apply,  §  859. 
By  default,  relief  for  mistake,  surprise,  neglect,  §  859. 
By  default,  relief  from,  affidavit,  §  859. 
By  default,  when  defendant  fails  to  answer  amended 

complaint,   §   872. 
By  default,  when  demurrer  to  answer  sustained,  §  872. 
By    default,    when    demurrer    to    complaint   overruled, 

§  872. 
By  default,  when  rendered,  §  871. 
Confession  of  judgment,  §§  112,  1135. 
Confession  of  judgment,  costs,  §  1135. 
Confession  of  judgment,  statement  of  defendant,  filing 

§  1135. 


JUSTICES'    COURTS.    XX,    XXI,    XXII.  !Ki 

Confession  of,  may  be  entered  in  any  court,  §  889. 

Docket  must  contain,  §  911. 

Docketing  in  superior  court,  effect  of,  §  899. 

Entry  of,  when  defendant  subject  to  arrest,  §  893. 

How  proved  in  another  state,  §§  1921,  1922. 

Lien  of  judgment  on  lands,  §  900. 

Lien  of,  extends  how  long,  §  900. 

Lien  on  lands,  not  unless  abstract  of  recorded,  §  900. 

Must  be  entered,  at  close  of  trial,  §  892. 

Of  dismissal,  when  action  in  wrong  jurisdiction,  §  890. 

Of  dismissal  without  prejudice,  in  what  cases  entered, 

§  890. 
Remitting  amount  in  excess  of  jurisdiction,  §  894. 
Upon  verdict,  to  be  entered  at  once,  §  891. 

XXI.  Executions. 

Alias,  §  903. 

Blanks  must  be  filled,  §  920. 

Contents  of,  §  902. 

Docket  must  contain  statements  relating  to,  §  911. 

Docketing  judgment  in  superior  court,  execution,  §  899. 

Duty  of  ofiicer  receiving.  §  904. 

In  another  county,  §  90.5. 

May  issue  within  five  years,  §  901. 

New  county,  justice  may  issue  execution  on  docket  of 

predecessor,  §  916. 
On  judgment  docketed  in  superior  court,  §  899. 
Proceedings  supplementary  to,  §  905. 
Renewal  of,  §  903. 

Supplementary  proceedings.  §§  714-721. 
Time  to  issue,  §  901. 
To  be  issued  without  blanks,  §  920. 
To  contain  statement  of  what,  §  902. 
To  whom  directed,  §  902. 
Upon  docket  of  preceding  justice,  §   916. 
Who  may  issue,  §  901. 

XXII.  Costs;  fees;   undertakings. 

Costs,  in  case  compromise  offered  before  trial,  §  895. 

Costs,  prevailing  party  entitled  to,   §  924. 

Costs,  security  may  be  required  for,  §  923. 

Costs  included  in  judgment,  §  896. 

Deposit  instead  of  undertaking,  §  926. 

Fees,  collection  and  report  of,  §  103. 

Fees,  inability  to  pay,  §  91. 


061       JUSTICES'    C»UHTS,    XXIIl— LANDLORD   AND   TENANT. 

Fees,  judgment  not  to  be  rendered  until  paid,  §  91. 
Fees,  payment  in  advance,  §  91. 
Fees,  payment  in  advance,  wlien  excused,  §  91. 
Fees  for  issuance  and  service  of  process,  §  91. 
Secuo-ity  for  costs,  justice  may  require,  §  923. 
Undertaking,  deposit  in  lieu  of,  §  926. 

XXIM.     Appeals. 

Certificates,  transcripts  and  other  papers,  §  92. 

Docket  to  contain  what,  §  911. 

Hov,^  taken,  §  92. 

Notice,  filing  of,  §  92. 

Papers  to  be  filed,  §  92. 

Statements,  who  to  settle,  §  92. 

Superior  court,  from  matter  taken  to,  time  for,  §  939. 

Superior  court,  proceedings  brought  into,  appealability, 

§  963. 
Sureties,  justication  of,  §  92. 
To  superior  court,  §§  974-980. 
To  supreme  court,  §  964. 

Transcripts  in  cases  certified  to  superior  court,  §§  92, 
838. 

JUSTICES  OF  SUPREME    COURT:   See    Supreme    Court 
Justices. 

JUSTIFICATION  OF  SURETY:   See  Surety. 

JUVENILE    OFFENDERS,    probationary   treatment   of  ju- 
venile offenders,   §   131. 
Probation  oflicer,  appointment  of,  §   131. 
Probation  oflicer,  powers  and  duties  of,  §  131. 
Probation  officer,  receives  no  compensation,  §  131. 
See  Probation  Oflicers. 

KNOVi/LEDGE  OF  THE  COURT:   See  Judicial  NcUce. 

LABORERS,  liens  of,  §  1183. 
See  Liens. 

LAKE,  boundary,  §  2077. 

Venue  of  action  for  offense  on  lake  situated  in  several 
counties,  §  393. 

LANDLORD  AND  TENANT,  adverse  possession  between, 
§  326. 


L.ANDLORD   AND   TENANT— LAW.  96S 

Assigning  or  subletting,  effect  of,  §  1161. 

Breach  of  covenants  by  tenant,  other  interested  parties 
may  perform,  §  1161. 

Forcible  entry,  §  1159.  See  Forcible  Entry  and  De- 
tainer. 

Forfeiture  of  lease,  §  1161. 

Forfeiture  of  lease,  proceedings  for  relief  against, 
§   1179. 

Forfeiture  of  lease,  who  may  apply  for  relief  against, 
§  1179. 

Holding-  over,  §  llGl. 

Holding  over  of  agricultural  lamls,  effect  of,  §  1161. 

Joinder  of  landlord  as  party  defendant,  §  379. 

Lease  of  estate  of  decedent,  §§  1577,  1579. 

Lease  not  exceeding  a  year,  -writing  not  necessary, 
§  1971. 

Leasing  agreement  for  longer  than  a  year,  §  1973. 

Notice  to  tenant  of  breach  of  covenants,  and  service 
thereof,  §§  1161,  1162. 

Notice  to  tenant  that  rent  is  due.  and  ser-vice  thereof, 
§    1161,    1162. 

Presumption  as  to  tenant's  possession,  §  326. 

Receipt  for  payment  of  rent  as  evidence,  §  1963. 

Rents:   See  Rents. 

Subletting  terminates  tenancy,  §  1161. 

Subtenant  may  perform  conditions  and  ccrvenants, 
§  1161. 

Subtenant,  rights  of  landlord  against,  §  1161. 

Tenancy  at  "will  to  be  terminate-d  by  notice,  §  1161. 

Tenant  cannot  deny  title  of  landlord,  §  1962. 

Tenant  holding  over,  rights  of,  §  1161. 

Unlawful   detainer,  who  guilty  of,  §  1161. 

Unlawful  detainer,  who  not  guilty  of,  §  1161. 

Unlawful  detainer  by  subtenant,  §  1161. 

Unlawful  detainer,  §  IIGO.  See  Forcible  Entry  and  De- 
tainer. 

Waste,  committing,  terminates  lease,  §  1161. 

Waste,  rights  where  tenant  commits,  §  1161. 

LANGUAGE,  instrument  in    foreign,    expert  may    testify, 
§  1863. 

LARCENY,  petit,  justice  has  jurisdiction  of,  S  115. 

LAW:   See  Code;  Statutes. 

Binding  on  all  tribunals,  §  2103. 

Books  (x>ntaining,  admissible  in  evidence,  §  1900. 


966  L.AW— L.li:<;iSL,ATUKE. 

Conclusions  of,  erroneous,  vacation  of  judgment,  §  663. 

Conclusions  of:   See  Conclusions  of  Law;    Findings. 

Constitution  antl  statutes,  §  1897. 

Foreign,  how  proved,  §  1901. 

Foreign  law.  or  laws  of  sister  state,  how  proved,  §  1902. 

How  authenticated,  §  1901. 

Issues  of,  §§  588-594.     See  Issues. 

Issues  of,  by  whom  tried,  §  592. 

Issue  of,  to  be  first  disposed  of,  §  592. 

Oral  evidence  of  foreign  laws,  §  1902. 

Organic  law,  defined,  §  1897. 

Public  and  private  statutes  defined,  §  1898. 

Questions  of,  for  court,  §  2102. 

Questions  of,  what  are,  §  2102. 

Recitals  in  statutes,  how  far  evidence,  §  1903. 

Sister  state,  of.  how  proved,  §§  1900-1902. 

Statutes,  what  are,  §  1897. 

Unwritten,  'defined,  §  1899. 

Unwritten,    of   another   state   or   county,   how    proven, 

§  1902. 
Written  and  unwritten,  §  1895. 
Written  law  defined,  §  1896. 
Written,  where  contained,  §  1897. 

LAW  BOOK,  presumed  correct,  §  1900. 

LEASE:    See  Landlord  and  Tenant;   Rents. 
A'greement  for  longer  than  a  year,  §  1973. 
Decedent's  estate,  of,  §§  1577,  1579. 
Term    not    exceeding    a    year,    writing    not    necessary, 
§  1971. 

LEASEHOLD,  when  subject  to  redemption  after  sale  on 
execution,  §  700. 
Execution,   sale   on,   of  lease   of  less   than   two   years, 
absolute,  §  700. 

LEGACY:   See  Wills,  III. 

Contribution  among  legatees,  §  1564. 

Liability  for  debts,  §  1563. 

Need  not  be  paid  until  court  orders,  §  1646. 

Order  for  payment  of,  §  1651. 

Petition  for,  in  giving  bond,  §  1658. 

Probate  of  will,  legatee  may  petition  for,  §  1299. 

Specific,  how  far  exempt  from  liability  for  debts,  §  1563. 

LEGISLATURE.      Continuance    because    of   attendance   of 
party,  witness  or  attorney  on  legislature,  §  595. 
Extension  of  time  during  attendance,  §  1054. 


LEGISLATURE— LIEN.  "«' 

Impeachment,  §§  36-39.    See  Impeachment 
Proceedings  of,  how  proved,  §  1918. 

LEGITIMACY,  presumption  of,  §§  1962,  1963. 

LETTER  OF  ATTORNEY:   See  Power  of  Attorney. 

LETTERS.     If  letter  admitted,  answer  admissible,  §  1854. 
Presumption  that  letters  mailed  were  received,  §  1963. 

LETTERS    PATENT:   See    Patent. 

LIBEL,  answer,  §  461. 
Complaint,  §  460. 
Justification,  §  461. 
Limitation  of  action  for,  §  340. 
Mitigating  circumstances,  evidence  of,  §  461. 
Pleading  In  actions  for,  §§  460,  461. 
Undertaking  for  costs  in,  p.  778,  Stats. 

LIBRARY,  exempt  from  execution,  §  690. 

LICENSE,  attorney's,  §§  277-281. 

Jurisdiction  of  justice's  court  of  suits  for  collection  of, 
§  103. 

LIEN:   See  Mechanics'  Liens. 

Action   to   foreclose,   on   realty,  where   brought,   §   392. 
Appeal   lies  from  interlocutory  judgment  in  action  to 

redeem,  §  963. 
Arising  from  acts  done  to  prevent  cruelty  to  animals, 

how  enforced,  §  1208. 
Arising  from  acts  done  to  prevent  cruelty  to  animals, 

sale  and  disposition  of  proceeds,  §  1208. 
Attachment,   ceases   when  Judgment  stayed  on  appeal, 

§  671. 
Costs,  when  claim  for  wages  disputed,  §  1207. 
Death,  judgment  after,  not  a  lien,  §  669. 
Defendant's,  in  partition,  pleading,  §  758. 
Definition  of,  §  1180. 
Interlocutory  judgment  in  action  to  redeem,  time  for, 

§  939. 
Judgment    in    another    county,    when    transcript    filed 

there,  §  674. 
Judgment,  when  begins  and  when  expires,  §  671. 
Judgment  after  death,  not  to  be  a,  §  GG9. 
Justice's  jud-gnient  a  lien  on  realty,  when,  §  900. 
Justice's  court,  action  to  enforce,  in,  §  113. 
Mechanic's,    §§    118,3-1203.     See    Mechanics'    Liens. 
Priority  of  mechanic's,  §  1186. 


m  LIEN— LIMITATION   OF  ACTION. 

Realty,  action  to  enforce  lien  against,  to  be  brought  in 

county  where  land  is,  §  78. 
Redemption  from,  proce<dure,  §  705. 
Redemption  from,  note  of  record,  to  be  produced,  §  705. 
Redemptioner  must  pay,  what,  §§  702,  703. 
Sale  of  decedent's  encumbered  land,  §§  15G9,  1570. 
Vessels,  on,  §  813. 
"Wages,    for,    preferred    on    assignment   for     creditors, 

§  1204. 
Wages,  notice  of  claim  for,  on  attachment,  §  1206. 
Wages,   for,   attachment  or  execution,   claim   disputed, 

§  1206. 
Wages,  for,  dispute  of  claim,  costs,  §§  1206,  1207. 
Wages,  for,  distribution  of  proceeds  when  entire  claims 

cannot  be  paid,  §  1208. 
Wages,  for,  priority  against  estate  of  decedent,  §  1205. 
Wages,  notice  of  claim  for,  on  execution,  §  1206. 

LIFE  ESTATE,  disposition  of,  on  owner's  death,  §  1723. 

Action  to  terminate,  §  1723. 
Setting  off  in  partition,  §  770. 
Waste,  liability  of  tenant  for,  §  782. 

LIMITATION  OF  ACTION,  absence  from  state,  how  affecta 

running  of  statute,  §  351. 

Accounts,  §  344. 

Acknowledgment  must  be  in  writing,  §  360. 

Action  already  commenced  not  affected  by  statute, 
§  362. 

Action  barred  before  code  takes  effect,  §  862, 

Action  barred  by  foreign  statute,  §  361. 

Action  barred,  not  affected  by  statute,  §  362. 

Action  can  only  be  commenced  within  times  pre- 
scribed in  c&des,  §  312. 

Action  commenced  before  code  takes  effect,  §  362. 

"Action"  includes  special  proceeding,  §  363. 

Actions  other  than  for  recovery  of  realty,  limitations 
generally,  §  335. 

Administrators  or  executors,  actions  by  and  against, 
§  353. 

Administration,  time  for,  fixed  by  will,  continuation  of, 
§  1670. 

Aliens,  concerning,  §  354. 

Appeal,  time  for  taking,  §  939. 

Assault,  for,  §  340. 

Assessment,  action  to  recover  stock  sold  for,  §  341. 

Assessment  for  local  improvement,  contest  of.  §  849. 

Bail  bond,  §  340. 


LIMITATION    OF  ACTION.  860 

Banks  for  deposit,  against,  §  348. 

Bank,  payment  of  forged  or  raised  creek,  §  340. 

Battery,  §  340. 

Burden  of  proving  action  is  barred,  §  458. 

Check,  payment  of  forged  or  raised,  §  340. 

City,  action  against  for  damages  by  mob  or  riot,  §  340. 

Claim  and  delivery,  §  338. 

Code,   actions    can    only    be    commenced    witliln   times 

prescribed   in,    §   312. 
Code,  effect  of,  on  existing  statute,  §  9. 
Conflict  of  laws,  §  361. 
Constable,  against,  §  339. 
Contest  of  probate,  §  1333. 
Contest  of  will  after  probate,  §  1327. 
Contract  executed  out  of  state,  §  339. 
Contract  executed  within  state,  §  337. 
Contract  not  founded  upon  instrument  in  writing,  §  339. 
Coroner,  against,   §   339. 
Corporation,  action  to  recover  stock  sold  for  delinquent 

assessment,  §  341. 
County,  on  claim  against,  rejected  by  supervisors,  §  842. 
Current  account,  §  344. 
Damages  for  death,  §  340. 
Death,  for,  §  340. 
Death  of  party,   action   by   or   against   representative, 

§§  353.  355. 
Death  of  party,  effect  of,  §§  353,  355. 
Decedent's   estate,    claims     against   barred,    not   to    be 

allowed,  §  1499. 
Decedent's  estate,   rejected   claim,   action  within   what 

time  to  be  brought,   §   1498. 
Decedent's  estate,  time  in  which  claims  against  must 

be  presented,  §§  1493,  1496. 
Decedent's   estate,    vacancy    in    administration   not   In- 
cluded in  limitations,  §  1501. 
Decedent's  estate,  vacating  sale  of,  §§  1573,  1574. 
Deposits  in  bank,  §  348. 
Detinue  of,  §  838. 

Directors,  for  penalty  or  forfeiture,  against,  §  859. 
Disabilities,  effect  of  two  or  more,  §  358. 
Disabilities  affecting  operation  of  statute,  §§  828,  852, 

1272,  1574,  1805,  1806. 
Disabilities,  Injunction  staying  action,  effect  of,  §  356. 
Disabilities,   statutory   prohibition  of  action,   effect  of, 

§  356. 
Disabilities,  vacancy  in  administration,  §  1501. 


LIMITATION   OF  ACTION. 

Disability  must  exist  when  action  accrues,  §  357. 

Entry  on  land,  within  what  time  must  be  made,  §  320. 

Escape,  of  action  for,  §§  339,  340. 

Escheated  estates,  time  within  which  claim  may  be 
made  to,  §  1272. 

Estate  of  decedent,  statute  does  not  run  pending  set- 
tlement of,  §  1569. 

Execution,  time  to  issue,  §§  681,  685. 

Execution  from  justice's  court,  time  to  issue,  §  901. 

Execution,  nonpayment  of  money  collected  on,  §  339. 

Execution  on  barred  judgment,  §  685. 

Executor,  sales  by,  limitation  of  actions  to  set  aside, 
§§  1573,   1574. 

Extension  of  time,  in  general,  §  1054. 

False  imprisonment,  for,  §  340. 

Foreign  statute,  bar  of,  §  361. 

Forfeiture,  for,  §§  338,  340,  359. 

Fraud,  how  affects,  §§  338,  1573. 

Guardian's  bond,  on,  §  1805. 

Guardian's  sale,  order  for,   §   1790. 

Guardian's  bond,  on,  §  1805. 

Guardian's  sale,  order  for,  §  1790. 

Guardian's  sale,  recovery  of  property  sold,  §  1806. 

Imprisonment,  effect  on,  §§  328,  352. 

In  general,  §  312. 

Injunction  staying  commencement  of  action,  effect  of, 
§  256. 

Infant,   concerning,   §§   328,   352,   1272. 

Insanity,  §§  328,  352. 

Judgments,  §  330. 

Judgment  barred  by,  execution  on,  §  685. 

Judgment  of  federal  court,  §  336. 

Landlord  and  tenant,  relation  of,  as  affecting,  §  326. 

Libel,  for,  §  340. 

Liens  on  vessels,  §  813. 

Loan  society,  against,  §  348. 

Lunatic,  concerning,  §§   328,  352,  1272. 

Married  women,  §§  352,  1272. 

Mechanic's  lien,  time  of  continuance,  §  1190. 

Mistake,  how  affects,  §  338. 

Mob  or  riot,  for,  against  municipality,  §  340. 

Mutual  account,   on,   §   344. 

Negligence,  damages  for  death  caused  by,  §  340. 

New  promise  must  be  in  writing,  §  360. 

Officer,  against,   §  339. 

Officer,  for  escape,  against,  §§  339,  340. 


LIMITATION  OF  ACTION.  971 

OflBcer.  for  money   collected   upon    execution,   against, 

§  239. 
Officer  for  seizing  goods  for  taxes,  against,  §  341. 
Officer  in  relation  to  property  seized,  §  ^41. 
Officer  de  facto,  §  341. 
Open  account,  §     344. 
Patent  to  land,  §§  316.  317. 
Patentee  of  state,  by,  §§  316,  317. 
Patentee  of  state,  by,  void  patent,  §  317. 
Penalty  for,  §§  338.  340,  359. 

Personal  actions,  limitations  in,  generally,  §  335. 
Personal   property,    action    for    detaining    or    injurlnfeu 

§  338. 
Pleading  the  statute,  how  done,  §  458. 
Prisoner,  concerning,  §§  328,  352. 
Probate  of  nuncupative  will,  §  1344. 
Prohibition  of  action,  effect  of,  §  356. 
Qui  tarn  action,   §  340. 

Real  property,  action  by  grantee  of  state,  §  316. 
Real  property,  action  by  state,  §§  315,  317. 
Real    property,    actions    other    than    for    recovery    (A 

limitations  generally,  §  335. 
Real  property,  action  to  redeem  mort.gage,  §§  S4C,  347. 
Real  property,  disabilities  excluded  from  time  to  com- 
mence actions,  §  328. 
Real  property,  entry  on,  action  must  be  brought  within 

one  year  thereafter,  §  320. 
Real  property,    entry   on,   must   be    made   within   five 

years,    §    320. 
Real  property,  mesne  profits  of,  §  356. 
Real    property,    occupation    deemed    under    legal     title 

unless  adverse,  §  321. 
Real    property,    occupation    under    written    instrument 

or  judgment,  when  adverse,  §§  322,  323. 
Real  property,  payment  of  taxes,   §  325. 
Real  property,  possession  not  under  instrument  extends 

how  far,  §  324. 
Real  property,  possession  of  part,  whether  possession 

of  whole,  §§  322,  323. 
Real  property,  possession,  presumption  as  to,  §  321. 
Real    property,     right    of     possession     not    affected    by 

descent    cast,    §    327. 
Real  property,  seisin,  necessary  to  maintain  or  defend 

action,    §5   318,  319. 
Real  property,  seisin,  within  five  years,  §§  318,  319. 
Real  property,  seisin,  rents,  §  319. 


LIMITATION   OF   ACTION. 

Real  property,  trespass  on,   §   338. 

Real  property,  what  constitutes  adverse  possession 
under  claim  of  title  not  written,  §  325. 

Real  property,  what  constitutes  adverse  possession 
under  written  instrument  or  judgment,  §  323, 

Redemption,  for,  §  346. 

Redemption,  when  two  or  more  mortgages,  §  347. 

Relief  not  otherwise  provided  for,  §  343. 

Rents,  what  seisin  necessary  in  action  or  defense  aris- 
ing out  of,   §  319. 

Replevin,  in,  §  338. 

Retroactive,  statute  is  not,  §  362. 

Reversal  of  judgment,  effect  of,  §  355. 

Reversal,  on  appeal,  time  for  new  action,  §  355. 

Revival  of  debt,  §  360. 

Riot,  for,   §  340. 

Savings  bank,  against,  §  348. 

Seduction,  for,   §  340. 

Seisin,  within  five  years,  §§  318,  319. 

Sheriff,  against,  §§  339,  340,  341. 

Sister  state,  limitation  laws  of,  §  361. 

Slander,  for.  §  340. 

Special  proceeding  included  under  "action,"  §  363. 

State,  by,  for  penalty  or  forfeiture,  §  340. 

State,  by,  respecting  real  property,  §  315. 

State,  by,  respecting  real  property,  void  patent,  §  317. 

State,  for  hospital  due,  §  345. 

State,  in  actions   generally,   §   345. 

State,  in  name  of,  or  for  benefit  of,  §  345. 

State,  on  contract  executed  out  of,  §  339. 

State,  on  contract  executed  within,  §  337. 

Statute,  liability  created  by,  §  338. 

Statutory  action,  §  340. 

Statutory  penalty  or  forfeiture,  §  340. 

Stock  sold  for  delinquent  assessment,  §  341. 

Stockholders  for  penalty  or  forfeiture,  against,  §  359, 

Summons,  for  issue  and  return  of,  §  581. 

Taxes,  for  seizing  goods  for,  §  341. 

Time  within  which  an  act  is  to  be  done  may  be  ex- 
tended, §  1054. 

Trespass  on  land,  for,  §  338. 

Trespass  to  personalty,  for,  §  338. 

Trover,  for,  §  338. 

Trust  company  for  deposit,  against,  §  348. 

Trusts,  implied,  §  1972. 

Undertaking  in  criminal  action,  on,  §  340. 


LIMITATION   OF   ACTION— MAGISTRATE.  973 

Unwritten  obligation,  on,  §  339. 

War,  effect  of,  on  running  of  statute,  §  354. 

What  law  governs,  §  362. 

When  action  is  commenced,  §  350. 

Where  not  otherwise  specified,  §   343. 

Will  and  probate  contests,  §§  1327,  1333. 

Writing  executed  in  this  state,  §  337. 

Writing  executed  out  of  state,  §  339. 

Written  obligation  or  liability,  §  337. 

LIS  PENDENS,  filing  of,  §  409. 

Filing  of  in  suit  to  quiet  title,  §  749. 

Partition,  in,  §  755. 

Plaintiff  in  partition  to  record  notice  of,  §  755. 

LOAN  SOCIETY,  limitation  of  actions  against,  §  348. 

LOS  ANGELES   COUNTY.     Number    of    superior    judges, 
§  66. 
Acts  increasing  number  of  superior  judges  in,  p.  765, 

Stats. 

LOST,   papers,  how  supplied,   §   1045. 
Summons,  issuance  of  alias,  §  408. 
Vouchers,  proof  of  payment,  §  1631. 
Wills,  probate  of:     See  Wills,  XI. 
Writing,  how  proved,  §  1855. 
Writings,  evidence  as  to,  §  1937. 

LOT,  mechanic's  lien  on,  §  1191. 

LOW-WATER   MARK,  boundary,   §  2077. 

LUNATIC:   See  Insane  Persons. 

MAIL,  notice  by,  time  for  when  served  by,  §  1005. 

MAIL  CARRIER,  exempt  from  jury  duty,  §  200. 

MAINTENANCE  of  children,  sole  trade  liable  for,  §  1820 
Of  ward,  §§  1757,  1770,  1779. 

MAGISTRATE,   contempt  by,   §   1209. 

Courts  open  any  day  to  exercise  power  of,  in  criminal 
action,  §  134. 


874  MAJORITY— MANDAMUS. 

MAJORITY.     Executors,  majority,  acts  of,  valid,  §  1355. 
May  act,  §  15. 
Service  of  mandamus  upon  majority  of  board,  §  1096. 

MALICIOUS    MISCHIEF,    justice's    court    has    jurisdiction 
over,  §  115. 

MALICIOUS  PROSECUTION.     Joinder  of  actions,  §  427. 

MANDAMUS,  adverse  party  may  answer  under  oath,  how, 

§  1089. 
Alternative,  requisites  of,  and  what  to  state,  §§  1087, 

1088. 
Alternative  or  peremptory,  §  1087. 
Alternative,   will   issue,    if   no   notice,    §    1088. 
Answer,  countervailing  by  proof,  §  1091. 
Answer,  proceedings  if  none  made,   §  1094. 
Answer,   proceedings   if   raises   only   immaterial    issue, 

§  1094. 
Answer,   proceedings   if  raises  only    question    of    law, 

§  1094. 
Appeals,  code  sections  relating  to,  apply  to,  §  1110. 
Chambers,     supreme     court    justice     not    to    grant   at, 

§  165. 
Code  sections  which  apply  to,  §  1109. 
Costs,  §  1095. 

Costs  and  -damages,  execution  may  issue  for,  §  1095. 
Damages,  §§  1090,  1095. 
Default,  writ  not  granted  by,  §  1088. 
Defined,  §  1084. 
Demurrer  to  answer,  §  1091. 
Disobedience  to,  punishment  for,  §  1097. 
Hearing,  §  1093. 

Hearing  may  be  at  any  time,  §  1108. 
In  what  cases  may  issue,  §§  1085,  1086. 
Judgment  for  applicant,  proceedings  on,  §  1095. 
Jury  trial,  §  1090. 

Jury,  directing  assessment  of  damages  by,  §  1090. 
Jury,  order  for,  what  to  state,  §  1090. 
May  Issue  on  affidavit,  §  1086. 

New  trials,  code  sections  relating  to,  apply,  §  1110. 
New  trial,  motion  for,  where  made,  §   1092. 
Notice  of  application,   §  1088. 

Notice,  necessary  to  issue  of  peremptory  writ,   §  1088. 
Penalty  for  disobeying,  §  1097. 


MANDAMUS— MARRIAGE.  975 

Peremptory,  requisites  of  and  what  to  state,  §  1087. 

Peremptory  or  alternative,  §§  1087,  1088. 

Peremptory,  to  be  issued  witliout  delay  on  judgment 
for  applicant,  §  1095. 

Peremptory  will  not  issue,  if  no  notice,  §  1088. 

Postponement  in,  §  1090. 

Return  and  hearing  may  be  at  any  time,  §  1108. 

Return  of,  answer  of  adverse  party,  §  1089. 

Service  of  writ,  manner  of,  §  1096. 

Service  upon  majority  of  board,  effect  of,  §  1096. 

Superior  court  or  judge  may  issue,  §  76. 

Supreme  court  may  issue,  §  51. 

Supreme  court  justice  may  not  grant  at  chambers, 
§  165. 

To  whom  will  issue,  §  1085. 

Transmission  of  verdict  to  court  where  motion  pend- 
ing, §  1093. 

Trial,  §§  1090-1095. 

Verdict  to  be  transmitted  to  court,  §  1093. 

What  courts  may  issue  §§  51,  1085. 

When  may  issue,   §§  1085,  1086. 

MAP,  boundaries,  §  2077. 
Evidence,  as,  §  1936. 

MARINERS:   See  Shipping. 

MARITIME  LAW:    See  Shipping. 

MARK,  included  in  signature  or  subscription,  §  17. 

Signature  by,  to  be  witnessed  by  two  persons,  §  17. 

MARRIAGE:   See  Divorce;    Husband  and    Wife;    Married 
Woman. 
Affinity,  meaning  of,  §   17. 
Agreement  of,  statute  of  frauds,  §  1973. 
Agreement  upon  consideration  of,  §  1973. 
Breach  of  promise,  private  sittings,  §  125. 
Declarations  of  decedent  relating  to,  §  1870. 
Guardian's,  does  not  end  authority,  §  1751. 
Guardianship  terminated  by  marriage  of  ward,  §  1753. 
Limitation  of  actions,   §§  328,  352. 
No  defense  in  action  of  unlawful  detainer,  §  1164. 
Presumption  of  from  cohabitation,  §  1963. 
Ward's,   effect  of,   §   1802. 


97G  MARRIED    WOMAN— MECHANIC'S    LIEN. 

MARRIED  WOMAN:   See  Husband  and  Wife;  Marriage. 
Actions    by    or    against,    husband    when  to  be  joined, 

§   370. 
Administratrix,  §  1370. 
Escheated     estate,    limitation    of    action    to    recover, 

§   1272. 
Executrix,   §  1352. 
Injunction  by,  undertaking,   §   529. 
Limitation  of  actions  in  cases  of,  §  352. 
May  defend  action  against  herself  and  husband,  §  371. 
May  sue  or  be  sued  alone,  when,  §  370. 
Sole  trader,   §§  1811-1821.     See  Sole  Trader. 
Unlawful  detainer,   coverture  no  defense,   §   1164. 
Unlawful  detainer,  execution,  enforcement  of,  §  1164. 
Wife  as  party,  husband  when  to  be  joined,  §  370. 
Witness  against  husband,  §  1881. 

MASCULINE  includes  feminine,  etc.,  §  17. 

MASTER  AND  SERVANT.     Claims  for  wages  preferred  on 

assignment,  §  1204. 
Death  of  employer,  wages  a  preferred  claim,  §  1205. 
Relation  of,  disqualifies  referee,  §  641. 

MATERIAL  OBJECTS,  evidence,  §§  1827,  1954. 

Jury  may  be  taken  to  view  the  premises,  §  610. 

MAYOR,  judge  or  justice,  not  to  act  as,  in  cities  over  W,- 
000,  p.  763,  Stats. 

MECHANIC'S  LIEN,  abandonment  or  failure  of  contractor 

effect  of,  §  1200. 
Acceptance  of  building.  §   1187. 
Action  on,  owner  may  deduct  amount  of  judgment  and 

costs,   §   1193. 
Action  on,  payment  withheld,  pending,  §  1193. 
Action     on,    recovery    by    owner    against    contractor, 

§    1193. 
Action,  personal,  right    to    maintain    not    affected    by 

§   1197. 
Agent,  work  done  at  instance  of,  §  1183. 
Agent  of  owner,  who  held  to  be,  §  1183. 
Alteration  of  contract,  effect  of,  §  1184. 
Appeal,  §  1199. 
Attorney's  fees,  §  1195. 
Bond  of  contractor,  action  •on,  §  1203. 


MECHANIC'S    LJEN.  9T? 

Bond  of  contractor,  requisites  of,  §  1203. 

Bond,    terms    of,    §    1203. 

Bond  cf  contractor,  effect  of  noncompliance  with 
statute,  §  1203. 

Bond  of  contractor  to  be  filed,  §  1203. 

Bond,  failure  to  file,  effect  of,  §  1203. 

Cessation  of  work,  effect  of,  §  1187. 

City  and  town  lots,  on,  §  1191. 

Claim  of,  fees  for  recording,  §  1189, 

Claim  of,  requisites,  §   1187. 

Claim  of,  time  for  recording,  §  1187. 

Claim  of,  to  be  filed  in  recorder's  ofiice,  §  1187. 

Claim  of,  to  be  recorded,  §  1189. 

Claims,  record  of,  index  of,  §  1189. 

Completion  of  contract,  what  deemed  to  be,  §  1187. 

Consolidating  actions,   §   1195. 

Contract,  requisites  of,  §  1183. 

Contract,  when  must  be  written,  §  1183. 

Contract  price,  mode  of  payment,  §  1184. 

Contract  price,  counterclaim  and  setoff,  §  1184. 

Contract  price,  time  of  payment,  §  1184. 

Contract  to  be  filed  in  county,  §  1183. 

Contractor's,    §    1183. 

Contractor,  measure  of  recovery  by,  §  1193. 

Contractor  to  defend  suits,  §  1193. 

Costs  of  suit,  §§  1193,  1195. 

Counterclaim  and  setoff,  §  1184. 

Extends  to  entire  contract  price,  when,  §  1183. 

Failure  or  abandonment  by  contractor,  effect  of,  §  1200. 

False  claims,  forfeiture,  §   1202. 

For  what  work  may  be  had,  §  1183. 

Forfeiture  of,  by  making  false  claims,  §  1202. 

Fraudulent  contract  between  owner  and  contractor, 
effect  on  liens  of  others,  §  1202. 

Grading  street  or  lot,  for,  §  1191. 

Imperfections,  trivial,  §  1187. 

Improvements,  notice  that  one  is  not  liable  for,  §  1192. 

Improving  city  lots,  for,  §  1191. 

Improvement  held  constructed  at  instance  of  owner 
§§  1192,  1202. 

Instance  of  owner,  improvements  held  to  be  con- 
structed at,  §§  1192,  1202. 

Instance  of  owner,  what  work  deemed  done  at,  S  1183. 

Interest  in  land  subject  to,  §  1185. 

Land  subject  to,  §   1185. 

,  Code  civil  Proc.-«2 


978  MECHANIC'S     L.1EN— MEMORANBtJM. 

Liens  of  others  not  to  be  impaired  by  contractor  or 
owner,  §  1201. 

Lots,  city  lien  for  improving,  §  1191. 

Materials  not  subject  to  attachment  or  execution, 
§  1196. 

Measure  of  recovery  by  contractor,  §  1193. 

Mining  claim,  on,  §  1183. 

New  trial,  §  1199. 

Notice  of  completion,  §  1187. 

Notice  of  completion,  effect  of  failure  to  record,  §  1187, 

Notice  of  completion,  fee  for  recording,  §  1187. 

Notice  that  not  responsible  for  improvements,  §  1192. 

Notice  of  completion,  time  for  recording,  §  1187. 

Notice  of  owner,  to  contain  what,  §  1187. 

Notice  to  owner  of  labor  done,  duty  to  withhold  pay- 
ment from  contractor  and  others,  §  1184. 

Notice  to  owner  of  labor  done,  requisites  of,  §  1184. 

Notice  to  owner  of  labor  done,  service  of,  §  1184. 

On  what  structures  may  be  had,  §  1183. 

Payment  withheld  pending  action  on  lien,  §  1193. 

Personal  action,  riglit  of  not  impaired  by,  §  1197. 

Practice,  rules  of,  §  1198. 

Preference  of,  §  1186. 

Priority  of,  court  to  declare,  §  1194. 

Priority  over  other  liens  and  encumbrances,  §  1186. 

Property  subject  to,  §§  1183,  1185. 

Protection  of  owner,  §  1193. 

Rank  of,  court  to  declare,  §  1194. 

Recording  of  claims  of,  §  1189. 

Recording  of,  fees  for,  §  1189. 

Recovery  of  debt,  lien  does  not  impair  right  to  pro- 
ceed for,  §  1197. 

Rules  of  practice  governing,  §  1198. 

Sale  of  property,  application  of  proceeds,  §  1194. 

Several  properties,  on,  amount  due  from  each  to  be 
designated.  §  1188. 

Several  properties,  on,  extent  of,  §  1188. 

Time  of  continuance,  §  1190. 

Trivial  imperfections,  §  1187. 

Waiver  of  claims,  §  1201. 

Who  entiUed  to,  §§  1183,  1191. 

MEMORANDUM  of  attached  property,  §§  545,  546. 
Of  costs,  to  be  furnished,  §  1033. 
Of  costs,  on  appeal,  §  1034. 


MEnCEn-MISJOlS'tDER.  !»7» 

MERGER  of  civil  and  criminal  remedies,  §  32. 

Written  instrument,  merger  of  oral  negotiations  in, 
§  1856. 

MESNE  PROFITS,  limitation  of  actions  for,  §  336. 

METES  AND  BOUNDS,  description  by,  §  455. 

MILITARY  OFFICER  exempt  from  jury  duty,  §  200. 

MINER,  what  property  of  exempt,  §   G90. 

MINES.  Action  to  recover,  survey  of  tunnels,  shafts  and 
drifts,  §  742. 

Eminent  domain.  §  1238. 

Exemption  of  miner's  property,  §  690. 

Local  rules  govern  actions,  §  748. 

Mechanics'    liens    on,    §    1183. 

Mining  customs,  proof  of,  in  actions  concerning  min- 
ing claims,   §   748. 

Patent  prima  facie  evidence  of  date  of  location  stated, 
§  1927. 

Summary  sale  of  mines  belonging  to  decedent,  §§  1529- 
1533.     See  Estates  of  Decedents.  XIII,  3. 

Survey,  liability  for  injury  done  by,  743. 

Survey  of,  order  for  what  to  contain,  and  how  served, 
§  743. 

Use  of  public  land  for  mining,  effect  on  certificate, 
§  1925. 

MINISTER,  affidavit,  may  take  in  foreign  country,  §  2014. 
Exempt  from  jury  duty,  §  200. 

MINOR:   See  Infant;    Probation  Officer. 

MINUTES  of  proceedings  in  justice's  court,  §  93. 

MISCONDUCT   OF   JURY,   new  trial   for,   §   657. 

MISDEMEANOR.     Failure    of   public   administrator   to   ac- 
count, §  1744. 
Jurisdiction  of  justices,  §  115. 
Number  of  trial  jury,  §  194. 

MISJOINDER:   See  Parties;   Pleading. 


980  MIRTAKK— MORTDAOE. 

MISTAKE  as  ground  for  relief  from  default  judgment  in 
justice's  couri,  §  859. 
In  pleading,   amendment  correcting,   §   473. 
Limitation  of  action,  how  affected  by,  §§  338,  1578. 
Parol  evidence  to  show,  in  writing,  §  1856. 
Relief  from,  §  185G. 
Relief  from  judgment  on  ground  of,  §  473. 

MOB,  limitation  of  action  against  municipality  for,  §  ?.40. 

MONEY,  specified  kind  of,  in  judgments,  §  GG7. 

MONO  COUNTY,  acts  increasing  superior  judges  in,  p.  765, 

Stats. 

MONTH  means  calendar  month,  §  17. 

MONUMENT  as  evidence,  §  1870. 
As  landm.ark,  §  2077. 
Boundaries,  monuments  as,  §  2C77. 

MORTGAGE,  adverse  possession,  §  346. 

Appeal   lies  from   interlocutory  judgment  in  action  to 

redeem,  §  963. 
Chattel,  foreclcsure,  bond  on  appeal,  §  943. 
Conveyance,  mortgage  not  deemed  to  be,  whatever  its 

terms,  §  774. 
Decedent,  against,  need  not  be  presented,  §  1500. 
Decedent,  against,  effect  of  failure  to  present,  §  1500. 
Decedent,  against,  order  of  payment,  §§  1643,  1644. 
Decedent's  encumbered  land,  sale  of,  §§   15G9,   1570. 
Decedent's  estate,  of,  §§  1577,  1578. 
Fees  in  to  be  fixed  by  court  in  all  cases,  p.  780,  Stats. 
Foreclosure  of,  §§  726-729.     See  Foreclosure. 
Foreclcsure,  action  for  m.ust  be  brought  where,  §  392. 
Foreclcsure,  appointment  of  receiver,  §   564. 
Foreclosure  of  chaitel,  bond  on  appeal,  §  943. 
Interlocutory  judgment  in  action  to  redeem,  time  for 

appeal.  §  939. 
I/imitation  of  action  to  redeem,  §  346. 
Limitation  of    action   to  redeem,    v.'hen  two  or    more 

mortgages.  §  347. 
Priority  of  mechanic's  lien,  §  1186. 
Purchase  money  in  partition,  mortgage  for,  §  777. 
Redemption  of  part  of  premises,  limitation  of  actions, 

§  347. 


MORTaAGE— MUNICIPAL    COnPORATION.  »8l 

Redemption,  note  of  record  to  be  produced,  §  705. 
Satisfaction,  form  of,  §  675a. 
Satisfaction,  time  of  entry  of,  §  G75a. 
Satisfaction  to  be  entered  after  sale,  §  675a. 

MOTHER,  administration  by,  §  1365. 
Death  of  child,  may  sue  for,  §  376. 
Guardianship  by,  §  1751. 
Injury  of  child,  may  sue  for,  §  376. 
Seduction,  may  sue  for,  §  375. 
See  Parent  and  Child. 

MOTIONS:   See  Order. 

Affidavit  may  be  used  on,  §  2009. 

Attachment,  to  discharge,  §§  556,  557. 

Defined.  §  1003. 

Informality,  refused  for,  second  application,  §  182. 

Injunction,  to  vacate  or  modify,  §  532. 

Judgment,  to  vacate,  §  663. 

Notice  of,  time  for,  when  served  by  mall,  §  1005. 

Notice  of,  time  to  be  given,  §  1005. 

Postpone  trial,  to.  for  absence  of  testimony,  §  595. 

Reference  ordered  on,  in  what  cases,  §  639. 

Special  proceeding,  in,  defined,  §  1064. 

Transfer  of  motion  to  another  judge,  §  1064. 

Where  to  be  made,  §  1004. 

MULTIPLICITY  OF  SUITS,  Injunction  to  prevent,  §  526. 

MUNICIPAL    CORPORATION,    action    by,    transfer    of    to 
another  county,  §  394. 
Bond,  need  not  give  in  action,  §  1058. 
Condemning  lands  of,  under  eminent  domain,  §  1240. 
Cutting  or  Injuring  trees  in,  damages  for,  §  733. 
Injunction    by,    undertaking    not    required.    §    529. 
Limitation  of  action  to  contest  local  assessment,  §  349. 
Limitation  of  action  against,  for  damages  by  mob  or 

riot,  §  340. 
Mechanics'  Hens  on  city  lots,  §  1191. 
Ordinance,  how  pleaded  In  police  court,  §  929. 
Partition  of  property  included  in  site  of,  §  763. 
Partition  proceedings  affecting  streets,  §  763. 
Right  to  take  property  for  street  not  affected  by  code, 

§  1263. 
Service  of  summons  on.  §  411. 
Venue  of  actions  against,  §  394. 


Ml  MUNICIPAL    COURT    OF    APPEALS. 

MUNICIPAL  COURT  OF  APPEALS.  Transfer  of  books, 
papers  and  actions  to  superior  court,  §  79. 

MUNICIPAL  CRIMINAL  COURT.  Transfer  of  books,  pa- 
pers and  actions  to  superior  court,   §  79. 

NAME,  annual  return  of  changes  of  names  to  be  made  to 
secretary  of  state,  §  1279. 

Banking  corporation  not  to  use  name  of  friendly  so- 
ciety, §  1276. 

Change,  jurisdiction  to,  §  1275. 

Change  of,  application  for,  how  made,  §  1276. 

Change  of,  application  for,  hearing,  §  1278. 

Change  of,  application  for,  what  to  contain,  §  1276. 

Change  of,  application  for,  who  may  make,  §  1276. 

Change  of,  certificate  by  secretary  of  state  on  applica- 
tion by  corporation,  §  1278. 

Change  of,  corporate,  petition  for,  §  1276. 

Change  of,  judgment  on  application,  §  1278. 

Change  of,   minors,  who  to  apply  for,  §  1276. 

Change  of,  order  to  show  cause,  what  to  state,  §  1277. 

Change  of,  order  to  show  cause,  publishing  and  posting, 
§  1277. 

Change  of,  order  to  show  cause,  proof  of  publishing  or 
posting,  §  1277. 

Change  of,  objections  to,  §  1278. 

Change  of,  petition  for,  §  127G. 

Change  of,  petition  for,  posting  of,  §  1277. 

Change  of,  petition,  for,  publication  of,  §  1277. 

Change  of,  proceedings,  §  1276. 

Change  of,  proof  of  publication  of  petition,  §  1277. 

Changes  of,  returns  of  to  be  published,  §  1279. 

Complaint  must  contain,  §  426. 

Corporate,  change  of,  §  1276. 

Fictitious,  suing  party  by,  §  474. 

Presumption  of  identity  from  identity  of  name,  §  1963. 

Publication  of  changes  of,  §  1279. 

Summons  must  contain,  §  407. 

Verdict,  each  juror's  must  be  entered,  §  628. 

NATIONAL  GUARD,  members  of,  exempt  from  jury  duty, 

§   200. 

NATURALIZATION,  superior  courts  have  power  of,  §  76. 
NAVIGABLE  WATERS  as  boundaries,  §  2077. 


NE     EXEAT— NETW    TRIAI*.  »83 

NE  EXEAT  abolished,  §  478. 

NEGLIGENCE  causing  death,  who  may  sue  for,  §5  376,  377. 

Damages  for  death,  §  377. 

Excusable,  as  ground  for  relief  from  default  in  jus- 
tice's court,  §  859. 

Limitation  of  action  for  damages  for  death  caused  by, 
§  340. 

Relief  from  judgment  on  ground  of  excusable,  §  473. 

See  Death;   Wrongful  Death. 

NEGOTIABLE  INSTRUMENT,  dishonor,  notice  of,  §  186b. 
Indorsement,     presumption,     as     to     time    of   making, 

§  19G3. 
Joinder  of  parties  in  suits  respecting,  §  383. 
Notice  of  protest,  what  imports,  §  1865. 
Presumption    as    to    time    and    place    of    indorsement, 

§  1963. 
Presumption  of  consideration,  §  1963. 
Setoff,  §  440. 
Several  actions  on,  costs  and  disbursements  in  case  of, 

§  1023. 
Transfer  of,  not  effected  by  setoff,  §  368. 

NEUTER  included  in  masculine,  §  17. 

NEWLY  DISCOVERED  EVIDENCE,  new  trial,  §  657. 

NEW  MATTER,  answer  may  contain,  §  437. 
Answer,  in,  deemed  controverted,  §  462. 
In  answer,  deemed  denied,  §  462. 

NEW  PROMISE,  effect  on  limitation,  §  360. 

NEWSPAPER.     Proof  of  publication  of  summons,   §   415. 
Publication  in,  how  proved,  §  2010. 

NEW  TRIAL,  accident  or  surprise,  for,  §  657. 

Appeal  from  order  granting  or  refusing,  papers  to  be 
used  on,  §  952. 

Appeal  from  order  respecting,  time  for,  §  939. 

Appeal  lies  from  order  denying  or  granting,  §  963. 

Application  for,  when  may  be  made  on  bill  of  excep- 
tions, §  658. 

Application  for,  when  may  be  made  on  minutes  of 
court,  §  658. 


984  NEW  TRIAL. 

Application  for,  when  must  be  made  ou  affidavit,  §  C58. 

Bill  of  cxceptious  on  motion  for,  may  be  used  on  ap- 
peal, §  950. 

By  order  of  court,  §  6G2. 

Chance  verdict,  g  C57. 

Ck)St.s  of  appeal,  §  1027. 

Court  may  order,  without  application  of  parties,  when, 
§  CG2. 

Delined,  §  C56. 

Disregard  of  evidence,  for,  §  GG2. 

Disregard  of  instriK'tions,  for,  §  CC2. 

Distribution  of  decedent's  estate,  §  1664. 

Eminent  domain,  §  1257. 

Eminent  domain,  costs  on,  §  1254. 

Error  in  law,  for,  §  657. 

Evidence,  for  disre^rarding,  §  GG2. 

Evidence,  for  insufficient,  §  C57. 

Evidence,  for  newly  discovered,  §  657. 

Excessive  damages,  for,  §  657. 

Forcible  entry,   provisions  relating  to  apply,   §   1178. 

Grounds  for,  §§  657,  662. 

Hearing  of  m.otion,  practice  on,  §  660. 

Hearing  of  motion,  reference  to  report  of  reporter  or 
transcript  thereof,  §  660. 

Hearing  of  motion,   reference  to  the  evidence,  ord'ers, 
and  pleadings,  §  6G0. 

Hearing  of  motion,  time  for,  §  660. 

Heirship,  provisions  apply  in  proceedings  to  determine, 
§   1664. 

Instructions,  for  disregarding,  §  662. 

Instructions,  for  misconception  of,  §  662. 

Irregularity   of  proceedings,   §   657. 

Jury,  for  misconduct  of,  §  657. 

Mandamus,  new  trials  in,  §  1109. 

Mandamus,  motion  for,  where  made,  §  1092, 

Mechanics'   liens,  in  cases   iuvolving,    §  1199. 

Misconduct  of  jury,  for,  §  657. 

Misconduct  of  jury,  how  may  be  proved,  §  65*7. 

Motion  for,  to  be  based  on  what  papers,  §  658. 

Motion  for,  when  denied  for  defective  notice  of  inten- 
tion, §  659. 

Notice  of  intention,  defective,  motion  denied  for,  §  659. 

Notice  of  intention,  sen^ice  on  adverse  party,  §  659. 

Notice  of  intention,  time  for  filing,  §  659. 

Notice  of  intention,  what  to  contain,  §  6S9. 

Notice,  when  motion  is  to  be  made  on  insufficiency  of 
evidence,  §  659. 


NEW    TniAI^NONUESIDS>n'.  »S 

Notice,  when  motion  is  to  be  made  on  errors  of  law, 
§  C59. 

Notice,  when  motion  is  to  be  made  on  minutes  of 
court,  §  659. 

Order  of,  review  of  on  appeal,  §  GC2. 

Passion  or  prejudice,  for,  §  662. 

Probate  orders  and  decrees,  provisions  relating  to  new 
trials  apply,  §§  1714,  1717. 

Procedure,  when  motion  is  to  be  made  on  affidavits, 
§  C59. 

Procedure,  when  motion  is  to  be  made  on  bill  of  ex- 
ceptions, §  G59. 

Procedure,  where  motion  is  made  on  statement  of  case, 
§  659. 

Procedure,  where  motion  on  ground  of  errors  of  law, 
§  659. 

Procedure,  where  motion  on  ground  of  insufficiency  of 
evidence,   §  659. 

Prohibilon,  new  trial  in,  §  1109. 

Review,  new  trial  in,  §  1109. 

Statement  on  appeal:     See  Statement. 

Statement  settled  after  motion  for,  may  be  used  on  ap- 
peal, §  950. 

Verdict,  chance,  §  657. 

Verdict,  pre-vention  of,  new  trial  in  case  of,  §  616. 

Writs,  what  code  sections  apply  to,  §  1110. 

When  may  be  granted,   §  657. 

When  verdict  prevented,   §  616. 

NONJUDICIAL  DAY:   See  Holidays. 

NONRESIDENT,  administrator,  as,  §  1369. 

Agent  for,  in  distribution  proceedings,  §§  1691-1695. 
Attachment  of,  §  537. 
Contempt,  §  1015. 

Corporation,  security  for  costs,  §§  1036,  1037. 
Costs,  security  for,  §  1036. 
Default  judgment  against,  §  585. 
Distribution  of  estate  of,  §  1667. 

Distribution    to    treasurer    where    distributee    nonresi- 
dent, §   17031^. 
Estate  of,  probate  jurisdiction  over,  §  1295. 
Guardians,  §§  1793-1799.     See  Guardian. 
Limitation,  time  to  claim  escheated  estate,  §  1272. 
Partition  affecting,  §§  757,  762,  788,  7S9. 
Place  of  trial  of  action  against,  §  395. 


986  NONRESIDENT— NOTICE. 

Pleadings  of,  by  whom  and  how  verified,  §  446. 
Publication  of  summons,  §§  412,  413,  757. 
Service  on.  manner  of,   §  1015. 
Subpoenas,  §  1015. 
Wards,  §§  1793-1799. 
Ward:     See  Guardians. 

NONSUIT,  consent  of  party,  on,  §  581. 
Grounds  for,  §  581. 

Merits,  in  what  cases  judgments  to  be  on,  §  582. 
On  failure  of  party  to  appear,  §  581. 
On  failure  to  prove  case  for  jury,  §  581. 
On  plaintiff  abandoning  action,  §  581. 
When  may  be  entered,  §  581. 

NOTARY,  affidavit  in  another  state,  may  take,  §  2013. 
Affidavit,  may  take,  §  2012. 
Deposition,  may  take,  §  2031. 
Oaths,  etc.,  may  administer,  §  2093. 
Seals,  records  and  furniture  exempt,  §  690. 

NOTICE:   See  subject  in  question. 

Adverse  party,  to  produce  writing  in  evidence,  §  1938. 

Appeal,  of,  §  940. 

Appeal  to  superior  court,  of,  §  974. 

Appearance  dispenses  with   proof  of,   §   1306. 

Attached  property,  of  sale  of,  §§  548,  550. 

Attached  vessel,  of  sale  of,  §  824. 

Attorney,  of  change  of,  §  285. 

Attorney,  substitution  of,  notice  of,  §  285. 

Bill  of  exceptions,  in  settling,  §  650. 

Calendar,  restoring  causes  to.  on,  §  593. 

Constructive,  lis  pendens,   §   409. 

Construed  according  to  ordinary  acceptance  of  terms, 

§  1865. 
Contempt  proceedings,  to  show  cause,   §  1212. 
Contribution,  of  claim  for,  §  709. 
Corporation,  of  dissolution  of,  §  1230. 
Corporation,  dissolution  of,  notice  of  hearing,  §  1232. 
Death  or  change  of  attorney,  of,  §  286. 
Death,  notice  of,  giving  to  public  administrator,  §  1728. 
Decedent's  estate,  of  postponing  sale  of,  §  1558. 
Decedent's  creditors,  to,  §  1490. 
Decedent's  realty,  of  sale  of,  §§  1547,  1549. 
Defective  title,  with,  when  valid,  §  1046. 
Distribution  proceedings,  of,  §  1664. 


ExecuLion  sale,  of,  §  692. 

Execution  sale,  selling  without  notice,  §  COS. 

Execution     sale,    of,     liability   for   defacing   or   taking 
down,  §  G93. 

Form  of,  §  1010. 

Hearing,  notice  of,  §  594. 

Hearing,  justice's  court,  §  850. 

Imprisonment,     of    application     for     discharge     from, 
§  1144. 

Injunction,  dissolution,  notice  of  motion,  §  532. 

Letters  of  administration,  of  application  for,  §  1373. 

Lienholders,  to,  to  appear  before  referee  iii  partition, 
§  762. 

Lis  pendens,  §  409. 

Mail,  service  by,  time  for,  §  IOCS. 

Mandamus,  of  application  for,  §  1088. 

Mechanic's  lien,  to  owner,  of  work  done,  §  1184. 

Motion,  of,  time  for,  §  1005. 

Must  be  given  defendant  of  all  proceedings,  after  ap- 
pearance,  §   1014. 

Need  not  be  given  defendant  of  proceedings,  if  fails  to 
appear,   §  1014. 

Negotiable  instrument,  notice    of    dishonor,    construc- 
tion of,  §  1865. 

New  trial,  of  intention  to  move  for,  §  659. 

Nonresident  guardian,   removal  of  property  by,  notice 
of,  §  1798. 

Nonresidents,  notices  upon  whom  served,   §   1015. 

Orders  made  without,  how  vacated  or  modified,  §  937. 

Partition,  of,  §  755. 

Partition  sale,  of,  §  775. 

Perpetuating  testimony,  notice,  §  2084. 

Prisoner,  application  for  discharge,  notice  of,  §  1145. 

Probate,  of  petition  for,  §  1303. 

Recorded  probate  decree  or  order  as,  §  1706. 

Redemption  from  execution,  of,   §   703. 

Requisites,  of,  §  1010. 

Service  of,  §§  1011-1017.     See  Service. 

Served,  how,  §§  1010,  1011. 

Service  of,  time  for,  §  1005. 

Service,  time  for,  extension  of,  §  1054. 

Sole  trader,  notice  of  application  to  become,  §  1812. 

Surety,  notice  of  entry  of  judgment  against,  §  1055. 

Tenant  holding  over,  to,  and  service  thereof,  §§  1161, 
1162. 


988  NOTICE— OATH. 

Title,  want  of,  effect  of,  §  1046. 

Trial,  of,  §  594. 

Trial,  of,   when  cause  transferred  to  another  justice  8 

court,  §  836. 
Writ  of  review,  of  application  for,  §  1069. 
Written,  must  be,  §  1010. 

NUISANCE,  abating,  §  731. 

Action  for,  who  may  bring,  §  73L 

Damages  for,  §  731. 

Defined,  §  731. 

Enjoining,  §  731. 

Jurisdiction   of  superior    court,  8  76. 

Jurisdiction,  supreme  court,  §  52. 

Public,  city  attorney  may  sue  to  abate,  §  731. 

Public,  city  attorney,  to  abate  when  directed  by  sup- 
ervisors, §  731. 

Public,  concurrent  right  of  district  attorney  and  city 
attorney  to  abate,  §  781. 

Public,  district  attorney  may  sue  to  abate,  §  731. 

Public,  district  attorney  to  abate  when  directed  by 
supervisors,   §   731. 

V/lio  may  sue  for,  §  731. 

NUMBER,  singular  or  plural  words  in  code,  §  17. 

NUMBERS  may  be  expressed  by  figures  or  numerals,  §  18S. 

NUMERALS,  use  of,  §  186. 

NUNCUPATIVE  WILL:    See  Wills,  V. 
In  general,  §§  1344,  1345. 

OATH,  affirmation,  form  of,  §  2097. 
Affirmation  in  place  of,  §  2097. 
Appraiser's,  §§  1445,  1449. 
Arbitrator's,  §  1285. 
Attorney's,  §  278. 

Attorney  acting  as  judge  pro  tempore,  oath  of,  §  72. 
Commissioner  or  elisor's,  to  sell  encumbered  property, 

§   726. 
Corporation's,  how  taken,  §  1348. 

Deputy  justice's  clerk,  authority  of,  to  administer,  §  &3. 
Executor  or  administrator's,  §  1387. 
Form  of,  §§  2094,  2095,  2096. 
Includes  what,  §  17. 


OATH— OFFICER.  }ify 

Juror's,  §  604. 

Justice's  clerk's,  §  86. 

Phonographic  reporter's,  §  272. 

Power  of  court  to  administer,  §  128. 

Power  of  judicial  officer  to  administer,  §  177. 

Prisoner's,  on  his  discharge,  §  1148. 

Public  administrator's,   §  1727. 

Public  administrator  may  administer,  §  1742. 

Receiver's,  §  567. 

Sole  trader's,  §  1818. 

Special  administrator's,  §  1414. 

Who  may  administer,  §  2093. 

Witness',  §§  2094,  2097. 

Witness',  affirmation  in  place  of,   §  2097. 

OBJECTIONS,  waived  if  not  taken  by  demurrer  or  answer, 
§  434. 
In  practice,  when  taken  by  demurrer  or  answer,  §  433. 
May  be  taken  to  dissolution  of  corporation,  §  1231. 
To  appointment  of  referee,  how  tried,  §  642. 
To  granting  letters  of  administration,  whei>  filed,  §  1351. 

OBLIGATION    arises  from   contract   or  operation  of   law, 
§  26. 
Definition,  §   26. 

OFFER  TO  COMPROMISE  admits  nothing,  §  2078. 

Generally,   §    997. 

In  justice's  court,    §   895. 

Proceedings  on,  §  997. 

OFFICE.  Appeal  from  judgment  that  one  is  usurping  of- 
fice does  not  stay,  §  949. 

Mandamus  lies  to  compel  admission  to,  §  1085. 

Repeal,  by  code,  §  7. 

Tenure,  how  code  affects,  §  6. 

Usurpation  of,  §§  802-810.     See  Usurpation  of  Office. 

"Vacancy,  when  election  annulled,   §   1127. 

Vacancy  in  office  of  supreme  court,  §  42. 

Vacancy  in,  of  justice,  supervisors  to  fill,  §  111. 

Vacancy  in  office  of  superior  judge,  §  70. 

Vacancy  in  office  of  judge  does  not  affect  proceedings, 
§  184. 

OFFICER,  arresting  witness,  liability  of,  §  2069. 
Assuming  to  be,  a  contempt,  §  1209. 


990  OFFICER— OFFICIAL    REPORTER. 

Authority  of  majority,  §  15. 

Bailiffs  of  supreme  court,  §§  2G5,  266. 

Bond,  need  not  give  in  action  in  official  capacity,  §  1058. 

Custodian    of    public     wrilinj^    bound    to    give   certified 

copies,  §  1893. 
De  facto,  limitation  of  action  against,  §  341. 
Disobedience  of  process  order  or  judgment,  a  contempt, 

§  1209. 
Entries,  by,  as  evidence,  §§  1920,  1926. 
Exempt  from  jury  duty,  §  200. 
Impeachment,   §§   3G-o9.     See   Impeachment. 
Joint  authority,  majority  may  act,  §  15. 
Judgment   against,    conclusive    against    sureties,    when, 

§  1055. 
Judgment  against,  how  enforced,  §  710. 
Judicial,  affidavits,  etc.,  taking,  §  179. 
Judicial,  contempt,  power  in  cases  of,  §§  178,  1209. 
Judicial,  controlling  power  of  courts  over,  §  128. 
Judicial,  exempt  from  juries,  §  200. 

Judicial  notice  of  public  and  private  official  acts,  §  1875. 
Judicial  powers,  etc.,  of,  §  176. 

Jiulicial,  to  have  no  partner  practicing  law,  §  172. 
Limitation  of  action  against,  §§  339,  341. 
Limitation    of    action    against    for    escape    of   prisoner, 

§  340. 
Majority  may  act,  §  15. 
Ministerial,  §§  128,  262. 
Misbehavior,  when  contempt,  §  1209. 
Oaths,  who  authorized  to  administer,  §  2093. 
Presumed  regularly  appointed,  §   1963. 
Presumption  of  performance  of  official  duty,  §  1963. 
Probation.     See  Probation  Officers. 
Replevin,   not    bound    by    affidavit   of   value    in,    when, 

§  473. 
Secretaries  of  supreme  court,  §§  265,  266. 
Service  of  mandamus  upon  majority  of  board,  effect  of 

§  1096. 
Supreme  court,  of,  §§  262,  265,  266. 
Supreme  court,  of,  traveling  expenses,  §  47. 
Usurpation     of    office,    §§    802-810.     See     Usurpation    or 

Office. 
Venue  of  actions  against,  §  393. 

Verification  of  pleading,  when  officer  a  party    §  446 
Witness,  as   §   1881. 

OFFICIAL  REPORTER:    See  Phonographic  Reporter. 


OIL   PIPE   LINE,  eminent  domain.  §   1238. 
OLOGRAPHIC  WILLS,  how  proved,  g   1309. 
OPINIONS  of  supreme  court  to  be  in  writing,  §  49. 
ORAL  EXAMINATION  defined,  §  2005. 

ORDER:   See  Motion. 

Amend,  power  of  court,  to,  §  128. 

Appeal  lies  from  special  orders  after  final  judgment, 
§  9G3. 

Appeal  from,  time  for,   §  939. 

Arrest,     §§   478-504.     See  Arrest  and  Bail. 

Conclusiveness  of,  §§  1909,  19G2. 

Condemnation,  of,  in  eminent  domain,  §  1253. 

Deemed  excepted  to,  §  647. 

Defined,   §§    1003,    1064. 

Disobedience  of,  a  contempt,  §  1209. 

Escheat  proceedings,  to  appear  in,  §  1269, 

Former,  evidence  of,  §  1962. 

Former,  to  be  pleaded,  when,   §   1962. 

Inadvertence,  relief  from.  §  473. 

Injunction,  to  show  cause  why  should  not  issue,  §  530. 

Inspection  of  writings,  for,  §  1000. 

Jurisdiction  of  justice's   court  over  violation,   §   103. 

Out  of  court  and  without  notice,  how  vacated  or  modi- 
fied, §  937. 

Payment  of  money,  for,  enforced  by  execution,  §  1007. 

Power  of  judges  to  grant  and  hear,  at  chambers,  §§  165, 
166. 

Power  of  judicial  officers  to  compel  obedience  to,  §  177. 

Probate  court,  form  of,  in  general,  §  1704. 

Quo  warranto,  for  arrest  of  defendant  in,  §  804. 

Removal  of  attorney  for  disobeying,  §  287. 

Repeated  application,  when  a  contempt,  §  183. 

Repeated  application  for,  prohibited,  §§  182,  183, 

Reviewed,  how,  §   936. 

Revocation  of  order  refused  by  another  judge,  §  183, 

Special  proceedings,  in,  §  1064. 

Surprise,  relief  from,  §   473. 

Survey,  for,   §§   742,   743. 

Special  proceeding,  in,  defined,  g  1064. 

Survey  of  land,   order  for  in  ejectment,   §§   742,  743, 

Telegraph,  service  by,  §  1017. 

Transfer  of  order  to  show  cause,  §  1006, 

Where  may  be  made,  §  1004. 


992  ORDINANCE— PARTIES. 

ORDINANCE,  how  pleaded  in  police  court,  §  929. 
Jurisdiction  of  justice  of  peace,  §  103. 
Violation  of,  trial   when  by   court  and  when  by  jury, 
§  932. 

OWELTY  of  partition,  §  1681. 

PAPERS,  lost,  how  supplied,  §  1045. 

Service  of,  §§   1011-1017.     See  Service. 
To  be  furnished  by  appellant  on  appeal,  §  950. 
What  may  be  taken  by  jury  on  retiring,  §  612. 
With  defective  title,   when   valid,   §   1046. 

PARENT  AND  CHILD,  parent  may  sue  for  death  of  minor, 

§  376. 
Parent  may   sue  whom   for  death   or  injury   of  minor, 

§  376. 
Seduction  of  daughter,  parent  may  sue  for,  §  375. 

PAROL  EVIDENCE,  to  vary  writing  inadmissible,  §  1856. 
To  explain  latent  ambiguity,  §  1856. 
When  admissible  to  explain  v/riting,  §  1856. 

PARTICULARS,  bill  of,  §§  454,  853. 

PARTIES,  abate,  transfer  of  interest  does  not  cause  action 
to,   §   385. 

Abatement  by  death,  etc.,  §  385. 

Absence  of,  order  made  during,  deemed  excepted  to, 
§  647. 

Absence  of,  postponement  of  trial  for,  §  595. 

Action  to  be  in  name  of  party  in  interest,  §  367. 

Adding,  §§   389,   473. 

Additional,  how  brought  in,  §  389. 

Administrator,  as,   §§   3G9.  1586. 

Administrator  or  executor  may  sue  without  joining 
beneficiary,  §  369. 

Adverse  claim,  action  to  determine,  §§  380,  381,  738. 

Amended  and  supplemental  pleadings  to  bring  in  neces- 
sary, §  389. 

Amendment  changing,  §  473. 

Application  to  be  made  party  by  interested  person, 
§  289. 

As  witness,  §  1879. 

Assignment  of  chose  not  to  prejudice  defense,  §  368. 

Associates  may  be  sued  by  name  of  association,  §  388. 

Beneficiaries  need  not  be  joinded  when,  §  369. 

Character  good,  admissibility  of  evidence  of,  §  Ji(i53. 


PARTIES.  ass 

Claimants   under   common    source   of   title    may   unite, 

§  381. 
Cloud  on  title,  suit  to  remove,  §  381. 
Contempt   by,    §    1209. 
Coparceners,  §§  381,  384. 
Cotenants,   §§   381,   384. 

Cotenants  may  sue  or  defend  jointly  or  severally,  §  384. 
Cotenants,  part  may  sue  or  defend  for  all,  §§  381,  384. 
Court  may  order  in  other,  when,  §  389. 
Death  of,  when  not  to  abate  action,  §  385. 
Death  or  disability  of  party,  effect  of,  §  385. 
Defect  of,  demurrer  for,  §  430. 
Defendant,  definition  of,  §§  308,  10G3. 
Defendant,  substitution  for,  §  386. 
Defendants,   those  united  In  interest  to  be  joined  as, 

§    382. 
Definition  of  plaintiff  and  defendant,  §§  308,  IOCS. 
Defendants,  who  may  be  joined  as,  §  379. 
Defendant  in  action  against  vessel,  §  814. 
Defendant   in   action   to   determine   adverse   claims   to 

realty,  §  380. 
Defense  by  one,  for  benefit  of  all,  §  382. 
Designated  as  plaintiff  and  defendant,  §  308. 
Designated  how,  in  special  proceeding,  §  10G3, 
Disability  of,  when  not  to  abate  action,  §  384. 
Distribution  of  decedent's  estate,  in,  §  1664. 
Ejectment,  in,  summons  to  unknown,  §§  700,  751. 
Eminent  domain.  In,  §§  1244,  1246. 
Escheat  proceedings,  in,  §  1271. 
Estopped,  who  are,  §§  1908,  1910. 
Executors  as,  §  369. 

Executors,  what,  need  not  be  made,  §  1587. 
Fictitious  name,  when  party  may  be  sued  by,  §  474. 
Foreclosure,  to,  who  need  not  be  made,  §  726. 
Forcible  entry  and  detainer,  in,  §§  1164,  1165. 
Guardian  ad  litem,  how  appointed,  §  373. 
Heirs  may  sue  for  wrongful  death,  §  377. 
Husband  and  wife,  §§  370,  371. 
Incompetent,  to  appear  by  guardian,  §  372. 
Infant,  to  appear  by  guardian,  §  372. 
Insane,  to  appear  by  guardian,  §  372. 
Insurers  in  separate  policies  may  be  joined.  §  383. 
Interest  in,  when  to  join,  §  382. 
Interpleader,  when  and  how  maintained,  §  386. 
Intervention,  how  and  when  effected,  §  387. 
Intervention,  who  may  intervene,  §  387. 

Code  Civil  Proc— «3 


»M 


Joinder  of,  In  suits  respecting  negotiable  instruments, 

§  383. 
Joinder  of  those  in  interest,  §  382. 
Joinder  of  those  severally  liable  upon  same  obligation, 

§  383. 
Joinder,   sureties,   §    383. 
Joint  contracts:   See  Joint  Contracts. 
Joint  debtors,  after  judgment,  §  989. 
Joint  tenants,  §§  381,  384. 
Judge  or  justice  who  is,  disqualified,  §  170. 
Judgment  against  one,  action  to  proceed  against  others, 

§  579. 
Judgment  may  be  for  or  against  one  or  more  of  the, 

§  578. 
Justice's  court,  in,  appear  in  person,  or  by  attorney, 

§  842. 
Landlord,  joinder  of,  as  defendant,  §  379. 
Legislature,   extension  of  time  during  attendance  on, 

§  1054. 
Married  woman  as  party,  husband  when  to  be  joined, 

§  370. 
Married   woman   may  defend  suit  against  herself  and 

husband.  §  371. 
Misjoinder,  demurrer  for,  §  430. 
Negotiable  instruments,  joinder  in  suit  on,  §  383. 
New,  bringing  in,  §  389. 
Nonjoinder,  demurrer  for,  §  430. 
Nonsuit,  §  581. 

One  may  sue  or  defend  for  all  when,  §  382. 
Other,  court  may  order  in,  §  389. 

Parent  may  sue  for  injury  or  death  of  child,  §  376. 
Parent  may  sue  for  seduction  of  daughter.  §  375. 
Parent  may   sue  whom  for  death  or  injury  of  child, 

§  376. 
Partition,  in:   See  Partition. 
Plaintiff,  definition  of,  §§  308,  1063. 

Plaintiffs,  those  united  In  interest  to  be  joined  as,  §  382. 
Plaintiffs,  who  may  be  joined  as,  §  378. 
Production  of  books  and  papers,  §  1000. 
Quieting  title,  In,  §  738. 
Quo  warranto,  in,  §§  803,  808. 
Real  party  in  interest  to  sue,  §  3G7. 
Record  of  court,  parties  cannot  contradict,  §  1837. 
Representative,  substitution  of,  §  385. 
Representative  may  sue  for  wrongful  death,  §  377. 
Same,  when  deemed,  §  1910. 


PARTIES-PAKTITION.  tBi 

Service  on,  manner  of,  §§  1010,  1011. 

Special  proceedings,  in,  §  1063. 

Striking  out,   §   473. 

Substitution  of,  §§  385,  386. 

Substitution  of  successors  in  Interest,  §  385. 

Substitution,  wliere  party  interpleads,  §  387. 

Suit  by  one,  for  benefit  of  all,  §  382. 

Sureties,  joinder  of,  in  suit  on  obligation,  S  383. 

Tenants  in  common,  §§  381,  384. 

Tenants  in  severalty,  §  381. 

Transfer  of  action  does  not  abate  it,  §  385. 

Transfer  of  interest,  action  does  not  abate,  S  385. 

Trust,  suit  to  establisli,  §  381. 

Trustee  may  sue  without  beneficiary,  §  369. 

Trustee  of  express  trust,  who  is,  §  369. 

Trustee  of    express    trust  may    sue    without    Joining 

beneficiary,  §  369. 
Unknown,  fictitious  name,  §  474. 

Unknown,  in  suit  to  quiet  title,  summons  to,  §§  750,  751. 
Unmarried   female   may    recover   for    own    seduction, 

§  374. 
Vessel,  defendant  in  action  against  §  814. 
When  one  or  more  may  sue  or  defend  for  all,  S  382. 

PARTITION.     Abstract  of  title,   §   799. 

Abstract  of  title,  by  whom  made,  §  800. 

Abstract  of  title,  correction  of,  §  800. 

Abstract  of  title,  custody  of,  §  799. 

Abstract  of  title,  expense  of,  §  799. 

Abstract  of  title,  how  verified,  §  800. 

Abstract  of  title,  keeping  for  inspection,  §  799. 

Abstract  of  title,  notice  of  making,  §  799. 

Abstract  of  titli,  notice  that  open  for  inspection,  S  799. 

Abstract  of  title,  plaintiff  may  procure,  §  799. 

Action  for,  who    may  bring,  §  752. 

Action,  where  brought,  §  392. 

Allotting  and  locating  shares  of  each,  §  764. 

Allowance    for    action    brought    or    defended    by   one, 

§  798. 
Allowance  of  expenses  paid  by  one  tenant,  §  798. 
Answer  In,  what  to  contain,  §  758. 
Appeal  from  order  respecting,  time  for,  §  939. 
Appeal  lies  from  what  orders  respecting,  §  963. 
Arbitration  In  case  of,  §  1281. 

Attorney,  appointment  of,  to  represent  party,  S  763. 
Attorneys'   fees,   costs  Include,   §  796. 
City  Included  in  property,  proceedings  in  case  of,  §  768. 


«S6  PARTITION. 

Compensation,  when  unequal  partition  ordered,  §  792. 
Compensation  of    tenant  whose  estate  has    been  sold, 

§   778. 
Compensation  of  tenant  whose  estate  sold,  court  may 

fix,  §  779. 
Compensatory   adjustment,   §   792. 

Complaint  in  case  of  unknown  party  or  interest,  9  753. 
Complaint  must  set  forth  interests  of  parties,  §  753. 
Complaint  must  set  forth  what  facts,  §  753. 
Complaint,  where  interest  is  unknown  or  contingent, 

§  753. 
Contingent  interest,  partition  of,  §  781. 
Conveyance  must  be  recorded  in  county,  §  787. 
Conveyance  will  bar  whom,  §  787. 
Costs  of,  a  lien  on  shares  of  parceners,  §  796. 
Costs  of,  application  of  proceeds  of  sale  to,  §  771. 
Costs  include  attorneys'  fees,  §  796. 
Costs,  judgment  for,  how  enforced,  §  796. 
Costs,  lien  on  undivided  share,  subject  to,  §  769. 
Costs  of  proceedings,  apportionment  of,  §  768. 
Costs  of,  when  restricted  to  certain  parties,  §  796. 
Costs   of  previous   litigation,   incurred   by   one   tenant, 

§  798. 
Counsel  fees,  incurred  by  one  tenant,  §  798. 
Counsel  fees  a  lien  on  shares,  §  796. 
Death  of  party,  effect  on  the  judgment,  §  766. 
Death  or  disability  pending,. proceedings  on,  §  763. 
Decedent's  estate,  of,  §§  1675-1686. 
Decedent's  estate,  of,  on  partial  distribution,  §  1661. 
Disbursements,  interest  on,  §  801. 
Division  of  property  must  be  made  how,  §  764. 
Estate  for  life,  when  may  be  set  off  in  property  not 

sold,  §  770. 
Estate  for  life  or  years,  unknown  tenant  of,  protection 

of,  §  780. 
Estate  for  years,  when  may  be  set  off  in  property  not 

sold,  §  770. 
Executor,  possession  of,  for  purpose  of,  §  1581. 
Expenses  of.  how  apportioned,  §§  768,  769. 
Expenses  paid  by  one  tenant,  allowance  of,  §     798. 
Fees,  apportionment  of,  §  768. 
Future    interests,    court    must    ascertain    and    secure. 

§  781. 
Future  interests,  how  protected,  §  781, 
Guardian,   assent   of,  authority   of  court,   necessity  of, 

and  how  obtained,  §  1772. 


PARTITION.  W7 

Guardian,  authority  of  on  partition  of  ward's  interest, 
§   1772. 

Guardian  may  consent  to  and  execute  releases,  §§  795, 
1772. 

Guardian  may  receive  proceeds  of,  §§  793,  794. 

Guardian  receiving  proceeds,  must  give  undertaking, 
§  794. 

Improvements,  apportionment  of,  §  7G4. 

Improvements,  appraisement  of,  §  763. 

Improvements,  in  partition  of  site  of  town  or  city, 
§  763. 

Incumbered  property,  application  of  proceeds,  §  771. 

Infant's  share  may  be  paid  guardian,  §  793. 

Insanity  of  person  pen-ding,  proceedings  on,  §  763. 

Interest  on  disbursements,  §  801. 

Judgment  in,  binds  whom,  §  766. 

Judgment  in,  effect  of  death  of  party,  §  766. 

Judgment  in,  not  to  affect  what  tenants  for  years,  §  767. 

Lien,  appointment  of  referee  to  inquire  into,  §  761. 

Lien  of  defendant,  answer  must  set  forth,  §  758. 

Lien  on  undivided  interest  a  charge  only  on  share  as- 
signed such  party,   §   769. 

Lien  on  undivided  share  subject  to  costs,  §  769. 

Lien,  proceeds  of  sale  to  be  applied  to  discharge  of, 
§  771. 

Lienholder  holding  other  securities  to  first  exhaust 
them,  §  772. 

Lieriholders  must  be  made  parties,  or  referee  appointed 
to  determine  rights,  §  761. 

Lienholders  not  of  record  need  not  be  made  parties, 
§  754. 

Lienholders,  notice  to  appear  before  referee,  §  762. 

Lienholders,  notice  to  appear,  how  served,  §  762. 

Lis  pendens,  plaintiff  to  record  notice  of,  §  755. 

Lunatic's  estate,  §§  794,  1772. 

Lunatic,  guardian  may  consent  to  partition  and  exe- 
cute releases,  §  795. 

Must  be  according  to  rights  of  parties  as  determined 
by  court,  §  764. 

Nonresidents  claiming  lien,  notice  to  appear,  how, 
served,  §  762. 

Nonresident,  service  on  by  publication,  §  757. 

Notice  of,  §  755. 

Owelty,  §  1681. 

Partial,  proceedings  in,  §  760. 

Partial,  when  to  be  ordered,  §  760. 


PARTITION. 

Parties,  death  or  disability  of,  pending  the  action,  prro- 

ceedings  on,  §  7C3. 

Parties,  lienholders  must  be  made,  §  761. 

Parties,  nonresident,  service  by  publication,  §  757, 

Parties,  ordering  in  lienholders,  §  7C1. 

Parties,  purchasers  and  lienholders  not  of  record  need 
not  be  made,  §  754. 

Parties,  rights  of  all,  may  be  ascertained,  §  759. 

Parties,  unknown,  rights  of,  may  be  considered  to- 
gether, §  759. 

Parties,  unknown  owners,  rights  of  to  be  considered, 
§  759. 

Parties,  unknown,  service  by  publication,  §  757. 

Proceeds,  distribution  of,  §  773. 

Proceeds  belonging  to  unknown  or  absent  party,  duty 
of  county  clerk  in  investing,  §  -791. 

Proceeds  belonging  to  unknown  or  absent  party  invest- 
ed in  county  clerk's  name,  §  789. 

Proceeds,  belonging  to  unknown  parties  or  nonresi- 
dents  must  be  invested,  §  788. 

Proceeds,  deposit  in  court,  §  773. 

Proceeds,  distribution  of,  party  holding  other  securi- 
ties may  be  compelled  to  exhaust,  §  772. 

Proceeds,  guardian  of  infant  or  lunatic  may  receive, 
§§  793,  794. 

Proceeds,  how  disposed  of  to  protect  future  interests, 
§  781. 

Proceeds,  order  confirming  sale  may  direct  disposition 
of,  §  785. 

Proceeds,  payment  into  court,  §  773. 

Proceeds,  payment  into  cooirt,  continuing  cause  to  de- 
termine claims,  §  774. 

Proceeds  of  unencumbered  property,  application  of, 
§  771. 

Proceeds,  nonresidents  or  unknown  owners  of,  dispo- 
sition, §  788. 

Proceeds,  order  directing  investment  of  share  of  in- 
fant,  lunatic  or  nonresident,   §   776. 

Proceeds,  taking  testimony  to  determine  rights,  §  774, 

Proceedings,    when    lienholder    purchases,    §    786. 

Referee,  new.  court  may  appoint,  §  766. 

Referees,  number  of,  §  763. 

Referee,  single,  powers  of,  §  797. 

Referees,  single  referee  may  be  appointed  by  consent, 
§  797. 

Referees,  when  appointed  to  make,  §  763. 


PARTITION.  999 

Referees,  city  or  town  site,  duty  in  partitioning,  §  763. 

Referee,  to  determine  ri-ghts  of  lienholders.  §  761. 

Referee  to  determine  rights  of  lienholder,  notice  to 
appear  before,  §  762. 

Referee,  to  determine  rights  of  lienholders,  notice  to 
appear  before,   service  on  absentees,   §   762. 

Referee,  to  determine  rights  of  lienholders,  report  of, 
§  762. 

Report  of  referees,  court  may  aflarm,  modify,  or  set 
aside,  §§  763,  766. 

Report  of  referees  to  contain  what,  §§  765,  784. 

Rights  of  all  parties  may  be  determined,  §  7^9. 

Road  or  street,  setting  forth  portion  for,  §§  763,  764. 

Road  or  street,  setting  forth  portion  for,  effect  on  exist- 
ing roads  and  streets,  §  764. 

Sale,  after  confirmation  of,  conveyance  to  be  executed, 
§  785. 

Sale,  agreement  as  to  shares,  filing  of,  §  790. 

Sale 

Sale 

Sale 

Sale 


Sale 

Sale 

Sale 
Sale 
Sale 
Sale 

Sale 
Sale 
Sale 
Sale 
Sale 
Sale 
Sale 
Sale 
Sale 

Sale 
Bale 

Sale 
Sale 


before  ordering,  title  to  be  ascertained,  §  759. 
cotenant  purchasing,  receipt  for  claim,  §  786. 
credit,  court  must  direct  terms  of,  §  776. 
encumhered    property,    application    of    proceeds, 
§  771. 

guardian  of  infant  party  may  not  be  interested  in, 
§  783. 

guardian   of   infant  or  lunatic   may  receive  pro- 
ceeds, §§  793,  794. 

lienholder  purchasing,  receipt  for  claim,  §  786. 
lots  to  be  sold  separately,  §  782. 
notice  of  and  its  requisites,  §  775. 
order   confirming   to    direct    disposition    of   pro- 
ceeds, §  785. 

order  to  direct  investment  of  proceeds,  §  776. 
order  to  direct  terms  of,  §  776. 
proceedings  when  lienholder  purchases,  §  786. 
purchasers,  who  may  not  be,  §  783. 
report  of,  filing,  §  784. 
report  of,  referees  must  make,  §  784. 
report  of,  requisites  of,  §  784. 
rights  of  unknown  parties  to  be  ascertained,  §  759. 
securities  for  purchase  money,  in  whose  name  to 
be  taken.  §§  777,  789. 

securities  for  purchase  money,  infants,  §  777. 
securities  for  purchase  money,  referees  may  take, 
§  777. 

securities,  receipt  for  to  be  filed,  §  790. 
terms  of,  to  be  made  known  at  time,  §  782. 


MOO  PARTITION— PARTNERSHIP. 

Sale  to  be  at  auction,  §  775. 

Sale,  when  may  be  ordered,  §  763. 

Sale,  who  may  not  purchase,  §  7S3. 

Sale  of  site  of  town   or   city,   improvements,  right  of 

cotenant  to  purchase.  §  763. 
Sale  of  site  of  town  or  city,  when  ordered,  §  763. 
Sale  of  specific  tract  by  tenant  in  common,  how  such 

land  allotted,  §  764. 
Sale,  securities,  receipt  for,  §  790. 

Sale,  securities  must  be  taken  in  name  of  parties,  §  790. 
Sale,  securities  taken  by  referee,  distribution  of,  §  773. 
Specific  tract,  of,  conveyed  by  one  tenant,  §  764. 
Summons,  service  by  publication,  §  757. 
Summons  must  be  directed  to  whom.  §  756. 
Snrveyor,  fees  of,  apportionment  of,  §  768. 
Surveyor  may  be  employed,  §  764. 
Tenants  for  years,  when  not  affected  by,  §  767. 
Townsite.  proceedings  on  partition  of,  §  763. 
Unequal,  compensation  adjudged  in,  §  792. 
Unknown  tenants,  court  must  protect,  §  780. 
Unknown   owners  or   interest,   protection   of  rights  of, 

§  763. 
Vested  future  interests,  to  be  protected,  §  781. 
Ward's  estate,  of,  §  1772. 
When    property    includes    city   or    town,    proceedings, 

§  763. 
Where  action  for,  must  be  brought,  §  392. 
Who  may  maintain,  §  752. 

PARTNERSHIP,  administrator,  partner  as,  §  1365. 
Declarations  of  partner,  §  1870. 
Executor's  sale  of  firm  interest,  §  1524. 
Judicial   officer   not   to   have    partner    practicing    law, 

§  172. 
Juror,  partner  as,   §   602. 
Petition  for  sale  of  mine  by,  §  1530. 
Presumption  of,  §  1963. 

Presumption  in  favor  of  contract  of,  §  1963, 
Receiver  for,  §  564. 
Referee,  partner  cannot  be,  §  641. 
Suit,  firm  name,  §  388. 

Surviving  partner  to  settle  up  business,  §  1585. 
Surviving  partner,  compelling  accounting  by,  §  1585.  . 
Surviving  partner,  duty  to  account,  §  1585. 


PARENT— PERFORMANCE.  leui 

PATENT,  limitation  of  actions  by  patentee  of  state,  §§  316, 
317. 
Prima  facie  evidence  of  date  of  location  stated,  §  1927. 

PAYMENT,  one  entitled  to  receipt  on,  §  2075. 

Presumption  of  from  possession  of  order,  §  1963. 
Presumption  that  money  paid  was  due,  §  19C3. 
Presumption   that   obligation    delivered    up    has    been 

paid,   §  1963. 
Tender,  objection  to,  must  be  specified,  §  2076. 
Tender,  offer  in  writing  to  pay  equivalent  to,  §  2074. 

PEDIGREE.     Common  reputation,  evidence  of,    when    ad- 
missible, §  1870. 
Declarations  of  decedent,  evidence  of,  §  1852. 
Venue  of  action  to  recover,  §  393. 
What  admissible  as  evidence  of,  §  1870. 

PENALTY:   See  Fine. 

Arrest  in  action  for,  §  479. 

Arrest  for,  in  justice's  court,  §  861. 

Contempt,  for,  §  1218. 

Defacing  or  taking  down  notice  of  execution  sale,  for, 

§  693. 
Embezzling  decedent's  estate,  or  disobejing  citation  to 

appear  in  the  matter  thereof,  for,  §  1460. 
Justice's  court,  action  to  recover  in,  §  112. 
Limitation  of  action  on,  §§  338,  340. 
Limitation  of  action  to  recover,  from  stockholders  and 

directors,  §  359. 
Mandamus,  for  disobedience  to,  §  1097. 
Practicing  law  without  license,  for,  §  281. 
Selling  under  execution  without  notice,  for,  §  693. 
Will,  for  nondelivery  of,  to  probate  court,  §  1298. 

PENDENCY  OF  ACTION  as  ground  of  demurrer,  §  430. 
Notice  of,  filing  of,  §  409. 
When  action  deemed  pending,  §  1049. 

PEOPLE,  execution  to  be  in  name  of,  §  682. 
Security,  do  not  give,  §§  529,  1058. 
See  State. 

PERFORMANCE,   of   conditions    precedent,   how   averred, 
§  457. 
Time  of,  of  act,  may  be  extended,  §  1054. 


1002    PERISHABLE      PKOPEKTY— PIIONOGRArMIC      REPORTKI1. 

PERISHABLE  PROPERTY.     Appeal  from  judgmcnL  direct- 
ing sale  does  not  stay,  §  949. 
Attachment  of,  §  547. 

Attachment  of,  proceeds  of  sale  of,   §550. 
Notice  of  execution  sale  of,  §  G92. 
Sale  by  executor  or  administrator,   §   1522. 

PERJURY,  number  of  witnesses  to  prove,  §  1844. 
Proof  necessary,  §  1968. 

PERPETUATING   TESTIMONY,   mode   of,   §§   2083-2087. 
See  Depositions. 

PERSON,  definition  of  injury  to,  §  29. 
Includes  corporation,   §  17. 
Joinder  of  actions  for  injuries  to,  §  427. 

PERSONAL  PROPERTY,  attachment  of,  manner  of,  §  542. 
Includes  what,  §  17. 
Limitation  of  action  for  injury  to,  §  338. 

PESTILENCE  as  cause  for  removal  of  court,  §  142. 

PETIT  LARCENY,  justice  has  jurisdiction  of,  §  115. 

PHONOGRAPHIC  REPORTER,  absent,  clerk  to  take  testi- 
mony, §  1051. 
Appointment  and  tenure  of  office,  §  269. 
Attention  to  duties  in  person,  §  271. 
Attention  to  duties  in  person,  excuse  from,  §   271. 
Clerk  to  take  down  testimony  where  there  is  no,  §  1051. 
Compensation  of,  §  274. 
Compensation  of,  how  paid,  §  274. 
Competency,  certificate  of,   §  270. 
Competency,  test  of,  §  270. 
Duties   of,    §   269. 
Fees  of,  §  274. 

Fees  of,  where  one  temporarily  appointed,  §  274. 
Number  of,  §  269. 
Oath  of,  §  272. 
Pro  tempore,  §  271. 
Pro  tempore,  oath  of,  §  272. 
Pro  tempore,  fees  and  compensation  of,  §  274. 
Pro  tempore,  report  of,  prima  facie  evidence,  §  273. 
Qualifications  of,  and  how  tested,  §  270. 


PHONOGRAPHIC    REPORTER— PLACE    OF    TRIAL.  1003 

Reference  to   report  of,   on   heaving    motion    for    new 

trial,  §  660. 
Report  of,   prima  facie  evidence,   §   273. 
Supreme   court,   for,    provided   for    in    Political    Code, 

§   268. 
Transcript  of  notes,  prima  facie  correct,   §  273. 

PHOTOGRAPHY.     Presenting  photographic  copy  of  will  to 
nonresident  witness,  §  1308. 

PLACE  OF  TRIAL,  absence  or  disability  of  justice,  trans- 
fer of  action,  §  90. 
Actions  brought  in  wrong  county,  action  may  be  tried, 

§  396. 
Appeal    from   order   on   motion    for   change,   time   for, 

§  939. 
Appeal  lies  from  order  relating  to  change,  §  963. 
Brought  in  wrong  county,  how  defendant  may  demand 

change,   §   396. 
Change  of  affidavit  of  prejudice  and  counter-affidavit, 

§  170. 
Change  of  affidavit  of  prejudice,  proceedings  on,  §  170. 
Change  of  affidavit  of  prejudice,  transfer  of  cause  on, 

§  170. 
Change  of,  costs  of,  §  399. 
Change  of,  disqualification  of  judge  where  more  than 

one  judge  in  county,  §  170. 
Change  of,  disqualification  of  judge  or  justice,  §  398. 
Change  of,  grounds  of,  §  397. 
Change  of,  to  what  court  transferred,  §  398. 
Change  of,  transmission  of  papers,  §  399. 
Change  of,  power  of  court  to  which  transferred.  §§  399. 

837. 
Change  of,  appeal  from  order  does  not  stay,  §  949. 
Change  of,  where  justice  prejudiced,   §   90. 
Claim  and  delivery  in  justice's  court,  §  832. 
Condemnation  proceedings,  §  1243. 
County  or  city,  action  against,  where  brought,  §  394. 
County    or    city,    action    by,    transfer    of,    to  another 

county,  §  394. 
Defendant  improperly  joined,   §  395. 
Defendant  joined  to  have  trial  in  his  county,  §  395. 
Foreclose  mortgage  or  lien  on  realty,  where  brought, 

§  392. 
Forfeiture,  action  to  recover,  §   393. 


1004  PLACE     OF    TRIAI^PLAINTIFT. 

Guardianship  proceedings,  change  of,  §  1760. 
Injunction,  place  of  trial,  where  injunction  demanded, 

§  392. 
Justice's   court,   place   of    trial:     See    Justice's    Court, 

XII. 
Lien  on  realty,  venue  of  action  to  foreclose,  §§  78,  392. 
May  be  changed  when,  §  397. 
May  be  tried  in-  any  county,  unless  defendant  objects, 

§  396. 
Mortgage,  venue  of  action  to  foreclose  lien,  §  392. 
Motion    may    be    transferred    to    another    judge,    when, 

§   1006. 
Offense  committed  on  lake  or  stream  in  several  coun- 
ties, §  393. 
OflBcer,  action  against,   §  393. 
Order   to  show   cause   may   be   transferred   to   another 

judge,  when,  §  1006. 
Penalty,  action  to  recover,  §  393. 
Quieting  title,  action  to  be   brought  in  county  where 

land  is,  §  78. 
Real  actions,  §  392. 
Real,    place   of,    when    property    lies    in   two    counties, 

§  392. 
Realty,  transfer  of  action  to  another  county,  proceed" 

ings  after  judgment,   §   400. 
Transferred   cases   respecting  realty,   proceedings  after 

judgment,  §  400. 
Transfer  to  another  court,  manner  of,  §§  398,  339. 
Transfer  when  judge   disqualified,   §   398. 
Transfer  to  another  court,  costs  of,  §  399. 
Transfer  to   another   court,   papers  to   be   transmitted, 

§  399. 
Transitory  actions,  §  395. 

When  defendant  about  to  leave  state,  §  395. 
When  defendant  nonresident,  §  395. 
When  residence  determines,  §  395. 
When  residence  of  defendant  unknown,  §  395, 

PHRASES,  interpretation  of:  See  Words  and  Phrases. 

PHYSICIAN  as  witness,  §§  1881,  1882. 
Exempt  from  jury   duty,  §  200. 
Property  exempt  from  execution,  §  690. 

PLAINTIFF:   See  Parties. 
Pleadings  of,  §  422. 


PLEA— PLEADING.  !«» 

PLEA:   See  Answer. 

PLEADING:  See  Answer;  Complaint;  Counterclaim;  De- 
murrer. 

Account,  how  to  be  stated,  §  454. 

Action  is  commenced  by  filing  complaint,  §  405. 

Allegations  not  denied,  when  deemed  controverted, 
§  462. 

Alleg"ations  not  denied,  when  deemed  true,  §  462. 

Amended,  filing,  §  4^2. 

Amended,  service  of,  §  472. 

Amended,  to  bring  in  necessary  parties,  §  389. 

Amendment,  time  for,  when  demurrer  sustained  or 
overruled,  §  476. 

Amendment,  when  variance,  §§  469,  470. 

Amendment  changing  parties,  §  473. 

Amendment  correcting  mistake,  §  473. 

Amendment,  in  justce  court:    See  Justice's  Court,  V. 

Amendment  of  course,  §  472. 

Amendment  of  course,  filing  and  service  of,  §  472. 

Amendment,  postponing  trial  in  justice's  court,  §  874, 

Amendment  without  costs,  §  470, 

Answer:   See  Answer. 

Bill  of  particulars,  §§  454,  853. 

Board,  determination  of,  §  456. 

Complaint:   See  Complaint. 

Conditions  precedent,  §  457. 

Consolidation  of  actions,  §  1048. 

Construction  of,  to  be  liberal,  §  452. 

Cross-complaint,   §  442.     See  Cross-complaint. 

Cross-demand,   §§  439,  440.     See  Cross-demand. 

Defects  in,  to  be  disregarded  unless  substantial  rights 
affected,  §  475. 

Defendant,  pleadings  of,  §  422. 

Defined,  §  420. 

Demurrer,  §§  430,  431.     See  Demurrer. 

Description  of  real  property  in,  §  455. 

Enlarging  time  for,  §  473. 

Error  in,  to  be  disregarded  unless  substantial  rights 
affected,  §  475. 

Escheat  proceedings,  in,  §  1271. 

Extension  of  time  respecting,  §  1054. 

Facts,  what  to  be  pleaded,  §  426. 

Fictitious  name,  when  party  may  be  sued  by,  §  474. 

Filing,  §  465. 

Form  of,  prescribed  by  code,  §  421. 

Form  of  action,  but  one,  §  307. 


lOOe  PLKADING. 

Genuineness  of  instrument,  when  not  admitted,  §  449. 
Heading  defective,  §  1046. 
Inspection  of  instrument,  demand  for,  §  449. 
Instruments,   genuineness  of,  how  controverted,   §  448. 
Instruments,  genuineness  of,  when  admitted,  §  448. 
Irrelevant  and  redundant  matter  may  be  stricken  out, 

§  453. 
Issue  not  made  by,  how  tried,  §  309. 
Items  of  account,  §  454. 
Joined,  what  actions  may  be,  §  427. 
Joint   debtor,   action   against    after    judgment,   §§   989, 

994. 
Judgment-roll,  as  part  of,  §  670. 
Judgments,   §§  456,  1962. 
Justice's  court.  In:   See  Justice's  Court,  V. 
Libel,  answer  In  action  for,  §  461. 
Libel,  complaint  in  action  for,  §  460. 
Limitation,  statute  of,  §  458. 
Lost,  how  supplied,  §  1045. 
Material  allegation  defined,  §  463. 
Names  of,   §   422. 
Objections  to,  waiver,  §  434. 
Ordinance  In  police  court,  §  929. 
Particulars,  bill  of,  §§  454,  853. 
Parties,  §§  367-380.     See  Parties. 
Plaintiff,  pleadings  of.  §  422. 
Private  statutes,  §  459. 
Real  property,  §§  455,  457. 
Rule    by    which     sufflciency     governed     prescribed    by 

code,   §   421. 
Separately  stated,  causes  of  action  to  be,  §  427. 
Separately  stated,  defenses  must  be,  §  441. 
Service  of,  §  465. 

Sham  answer  may  be  stricken  out,  §  453. 
Slander,  complaint  In  action  for,  §  460. 
Special  Issues  not  made  by  pleadings,  how  tried,  §  309. 
Statute,  private,  §  459. 
Statute  of  limitations,    §   458. 

Striking  out  redundant  and  irrelevant  matter,  §  453. 
Striking  out,  order  deemed  excepted  to,  §  647. 
Subscription  to,  §  446. 

Supplemental,  for  revival   of  judgment,   §   685. 
Supplemental,  to  bring  in  necessary  parties,  §  389. 
Supplemental,  when  allowed,  §  464. 
Title,  defective  or  want  of,  effect  of,  §  1046. 
Variance,  amendment,  §§  469,  470. 
Variance,  Immaterial,  how  provided  for,  §  470. 


PLEADING— POLICE    COURT.  1«07 

Variance,  what  is  not  but  a  failure  of  proof,  §  471. 

Varip.uce,  when  malerial,  §  4C9. 

Verification  of,  afTidavit,  §  44G. 

Verification  of,  by  attorney,  §  440. 

Verification  of,  by  officer  of  corporation,  §  446. 

Verification  of,  by  one  other  than  party,  §  446. 

Verification  of,  manner  of,  §  446. 

Verification,  may  be  by  affidavit,  §  2009. 

Verification  of,   when   necesiiary,   §  446. 

What  constitutes,  in   proceedings  against  joint  debtor 

after  jmlgment,  §  993. 
"What  pleadings  are  allowed,  §  422. 
Written  instruments,   §§   447-449. 
Written  instrument  in  Justice's  court,  §  886. 

PLURAL  includes  singular,  §  17. 

POLICE  COURT,  action  in,  commenced  by  filing  complaint, 

§  929. 
Act  transferring  records  and  procee-dings  to,  p.  783,  §  3, 

Stats. 
Answer  may  be  oral  or  written,  §  931. 
Answer,  when  may  be  made,  §  931. 
Appeal   to   superior   court,    §§    974-980.     See   Appeal. 
Attorney,  license  not  necessary  to  practice  as,  in,  §  281. 
Complaint,  filing,  §  929. 
Complaint  to  contain  what,  §  929. 
Complaint  in,  to  be  verified,  §  929. 
Impaneling  jury,  manner  of,  §§  250,  251. 
Jurors  for,  how  summoned,  §§  230,  231. 
Mandamus,  cannot  issue,  §  1085. 
Ordinance,  how  pleaded,  §  929. 
Ordinance,  violation  of,  how  pleaded,  §  929. 
Proceedings  conducted  as  in  justice's  court,  §  933. 
Provided  for  in  Political  Code,  §  121. 
Record,  police  courts  are  not  courts  of,  §  34. 
Seal.  has.  §  147. 
Seal,  form  of,  §  150. 
Summons,  time  for  issuing,  §  930. 
Trial,  adjournment,  §  931. 
Trial,  time  for.  §  931. 
Trial  by  court,  in  what  cases  will  be  had  on  violating 

ordinance,  §  932. 
Trial  by  jury,  when  defendant  entitled  to  on  violating 

ordinance,  §  932. 


1009  POLICE   JUDGE— PREFERENCE. 

POLICE  JUDGE  may  take  acknowledgment,  affidavit, 
deposition,  §  179. 

POLLING  JURY,  §   618. 

POSSESSION,  adverse,  §§  318  et  seq.  See  Adverse  Pos- 
session. 

Issue  of  title,  evidence  of  continued  possession  of  re- 
mote occupant,  §  1834. 

Parties  defendant,  who  may  be  joined  in  action  for, 
§  379. 

Presumption  of  ownership  from,  §  1963. 

Realty,  action  to  recover,  costs  of  course  allowed  when, 
§  1022. 

Writ  of,  of  may  have,  §  380. 

Writ  of:   See  Assistance. 

POSTPONEMENT,  costs  may  be  imposed,  §  1029. 
Forcible  entry,  etc.,   §  1173. 
Mandamus,  on,  §  1090. 
Trial,  §§  595,  596. 
Trial,  justice's  court,  §§  873-876. 
Trial,  commission,  return  of,  §  2027. 

See   Continuance;    Justice's   Court,   XIII. 

POWER   OF   ATTORNEY  to  act  as  counsel    In    justice's 

court,    §    96. 

PRACTICE:    See  Trial. 

Action,  when  commenced,   §  350. 

Eminent  domain,  rules  of  practice  governing,  §§  1256, 
1262. 

Error  disregarded  unless  substantial  rights  affected, 
§  475. 

Orders  out  of  court  without  notice,  how  vacated  or 
modified,  §  937. 

Power  of  court  where  procedure  not  specifically  pro- 
vided, §  187. 

Time,  extension  of,  generally,  §  1054. 

Vacancy  in  office  of  judge  does  not  affect  proceedings, 
§   184. 

PREFERENCE,  claims  for  wages,  §§  1204-1207. 

Condemnation     proceedings,     preference   of   over   other 

civil  actions,  §  1264. 
Debts  against  decedent's  estate,  §§  1643-1645. 


PREFERENCE— PRESUMPTIONS.  lOOS 

Election  contests,  preference  of  on  appeal,  §  57. 

F"mily  allowance,  preference  of,  §  1467. 

In     making    appointment     of     special    axiministrators, 

§  1413. 
Probate  appeals,  preference  given  to,  §  57. 
Wages   a   preferred   claim   against   estate   of  decedent. 

§  1205. 
Where    several     persons    equally   entitled   to    admiuis 

ter,    §    1366. 
Who  entitled  to,  in  appointment  of  guardian,  §  1751. 

PRESENT  includes  future,  §  17. 

PRESUMPTIONS.     Ancient  documents  presumed  genuine, 

§   1963. 
Binding  on  jury,  §  1961. 
Books    containing    laws    of   foreign   country    or   sister 

state  presumed  correct,  §  1900. 
Conclusive,  enumeration  of,   §  1962. 
Conclusive,  estoppel  in  pais,   §   1962. 
Conclusive,  estoppel  by  acts  in  pais,  §  1S62. 
Conclusive,  estoppel  by  "standing  by,"   §   1962. 
Conclusive,  generally,   §  19G2. 
Conclusive,  guilty  intent,  when,  §  1962. 
Conclusive   judgment,    §§    1908,   1962. 
Conclusive,  legitimacy,  §  1962. 
Conclusive,   malicious  intent,  when,   §   1962. 
Conclusive,  order  of  court,  §§  1908,  1962. 
Conclusive,    presumption    made    conclusive    by    statute, 

§  1962. 
Conclusive,  recital  in  written  instrument,   §   iao/i. 
Conclusive,  tenant  cannot  deny  landlord's  title,  §  1962. 
Controvertible,  §  1961. 
Definition  of,  §  1959. 
Disputable,   §§   1961,   1963. 

Disputable,  acquiescence,  presumption  from,  §  1963. 
Disputable,  ancient  writing,  §§  34,  1963. 
Disputable,  arbitration,  all  matters  passed  upon,  §  1963. 
Disputable,     arbitrators     passed     on     all    matters    sub- 
mitted, §  1963. 
Disputable,  arising  from  order  of  court,  §  1909. 
Disputable,  books  containing  reports  of  cases,   §   1963. 
Disputable,  books  printed  by  authority,   §   1963. 
Disputable,  burial  ground,  dedication  of,  §  1963. 
Disputable,   books,   contents  of,   correct,   §   1963. 
Disputable,  consequence  of  act  intended,  §  1963. 

Code  ClvU  Proc.— 64 


1010  PRESUMPTIONS. 

Disputable,  coiioidcratiou  for  bill  or  note,   §  1963. 

Disputable,    considoralion  for  indorsement,   §   1963. 

Disputable,    continuance   of   thins,    §    1963. 

Disputable,  consideration  from  writing,  §  1963. 

Disputable,    course    of    business,      ordinary     followed, 
§  1963. 

Disputable,  course    of    nature,    or  habits  of  life,  ordi- 
nary, §  19G3. 

Disputable,  court  acting  within  jurisdiction,  §  1963. 

Disputable,  date,  correct,  §  1963. 

Disputable,  death  after  seven  years,  §  1963. 

Disputable,  death,  priority  of,  §  1963. 

Disputable,   dedication   of  burial    ground,   §   19G3. 

Disputable,  delivery,  §  1963. 

Disputable,   delivery  from   possession  of  order  for  de- 
livery, §   1963. 

Disputable,     delivery     imports   ownership   of   deliverer, 
§  19G3. 

Disputable,  fairness  of  private  transactions,  §  1963. 

Disputable,  generally,  §  1963. 

Disputable,    higher  evidence  is   adverse,   if  lower  pro- 
duced, §  1963. 

Disputable,  identity  of  person  from  identity  of  name, 
§  1963. 

Disputable,  indorsement  of  bill  or  note,  time  of,  §  1963. 

Disputable,  indorsement,  where  made,  §  1963. 

Disputable,  innocence,  §  19G3. 

Disputable  issue,  all  matters  in  passed  upon,  §  19;i3. 

Disputable,  judge  acting  within  jurisdiction,  §  1963. 

Disputable,  jurisdiction  that  court  or  judge  acts  with- 
in, §  1963. 

Disputable,  jury  must  find  according  to,  §  1961. 

Disputable,  law  has  been  obeyed,  §  1963. 

Disputable,  legitimacy,  §  1963. 

Disputable,  letters  mailed  were  received,  §  1963. 

Disputable,  marriage,  §  1963. 

Disputable,  may  be  rebutted  by  evidence,  §§  1961,  1963. 

Disputable,  money  paid  to  a  person  was  due,  §  1963. 

Disputable,     nonconclusive      judicial      record      correct 
§  1963. 

Disputable,  obligation  delivered  up  paid,  §   1963. 

Disputable,  officer  regularly  appointed,   §  1963. 

Disputable,  official  duty  performed,  §  1963. 

Disputable,  ordinary  care  tak^n  of  one's  own  concerns 
6  1?63. 


PRESUMPTIONS-PRIMA    PACIE    EVIDENCE.  Wll 

Disputable,  ownership  from  acts  of  dominion  or  from 
reputation,  §  1963. 

Disputable,  ownership  from  common  reputation,  §  19fi3. 
Disputable,  ownership  from  exercising  acts  of  owner- 
ship, §  1963. 

Disputable,  partnership,  §  1963. 

Disputable,  payment  from  possession  of  order  for  pay- 
ment, §  1963. 

Disputable,  payment  of  earlier  rent  and  installmenta 
on  production  of  later  receipt,  §  1963. 

Disputable,  possession  imports  ownership,  §  1963. 

Disputable,  rent,  last  receipt  for,  §  1963. 

Disputable,  shorthand  notes,   §   273. 

Disputable,  survivorship,   §  1963. 

Disputable,  suppressed  evidence  adverse,  §   1963. 

Disputable,  that  one  takes  ordinary  care  of  his  con- 
cerns, §  1963. 

Disputable,  trustee,  bare,  has  conveyed  to  cestui, 
§  1963. 

Disputable,  unlawful  intent,  §  1963. 

Disputable,  witness  presumed  to  speak  truth,  §  1847. 

Disputable,  writing  thirty  years  old,  §  1963. 

Document  over  thirty  years  presumed  genuine,  §   1963. 

Error  not  presumed  prejudicial,  §  475. 

Foreign  judgment,  presumption  arising  from,  §  1315. 

Marriage,  presumption  of,  §  1963. 

May  be  controverted,  when,  §  1961. 

May  be  rebutted  by  evidence  unless  made  conclusive. 
§§  1961,  1963. 

Offlcer  regularly  appointed,  §   19G3.  ^ 

Partnership,  presumption  as  to,  §  1963. 

Possession,  presumption  of  ownership.  §  1963. 

Possession  of  realty,  presumption  as  to,  §  321. 

Refusal  to  produce  books  and  papers,  on,  §  1000. 

Survivorship,   presumptions   respecting,    §    1963. 

Tenant,  possession  of,  presumption  as  to,  §  326. 

Witness  presumed  to  speak   truth,  §   1847. 

Words  presumed  used  in  ordinary  acceptation,  §  18(51. 

PRIEST,  exempt  from  jury  duty,  §  200. 
Privileged  communication,  §  1881. 

PRIMARY  EVIDENCE:   See  Evidence,  II. 

PRIMA  FACIE  EVIDENCE:   Gee  Evidence,  II. 


1012  PRINCIPAL    AND    AGENT— PROBATE    COURT. 

PRINCIPAL  AND  AGENT:     See  Agency. 
PRINTING  included  in  writing,  §  17. 

PRISONER,  adverse  possession  against,  §  328. 

Confined  on  civil  process,  discharged  on  what  condi- 
tions, §  1143. 

Deposition  of,  §§  1995-1997. 

Discharge  of,  by  order  of  plaintiff,  no  second  arrest, 
§  1153. 

Discharge  of,  denied,  second  application,  §  1150. 

Discharge  of,  evidence,  hearing  of,  §  1146. 

Discharge  of,  exempts  from  subsequent  arrest,   §  1151. 

Discharge  of.  final,  §  1151. 

Discharge  of,  judgment  remains  in  force,  §  1152. 

Discharge  of,  notice  of  application  for,  §  1144. 

Discharge  of,  notice  of  application  for,  service  of, 
§  1145. 

Discharge   of,   oath   to   be   administered,   §   1148. 

Discharge  of,  order  of.  §   1149. 

Discharge,  examination  for  1  efore  judge,  §  1146. 

Discharge,  examination  for,  answers  in  writing  may  be 
required,  §  1147. 

Escape,   limitation   of  action   for,   §   340. 

imprisonment,  effect  on  running  of  statute,  §  328. 

Limitation  of  action  in  case  of  imprisonment,  §§  328, 
352. 

riaintiff    may   order    discharge   of,    §    1153. 

Support  of,  plaintiff  to  advance  funds  for,  §  1154. 

Witness,  as,  §§  1995-1997. 

Witness,  order  for  production  of,  §§  1995,  1996. 

PRIVATE  STATUTE,  defined,  §  1898. 

Foreign  law-books  admissible  in  evidence,  §  1900. 

How  pleaded,  §  459. 

Recitals  in,  how  far  evidence,  §  1903. 

PRIVATE  SITTINGS,  in  certain  cases,  §  125. 

PRIVATE   WRITINGS:    See  Writings. 

PRIVILEGED  COMMUNICATIONS,  §§  1880-1882.  See  Wit- 
nesses. 

PROBATE  COURT:  See  Executor  and  Administrator;  Es- 
tate of  Decedent;    Public  Administrator. 

Appeals,   §    1714. 

Appeals,  preference  given,  §  57. 

Appeal  from  decree  settling  trustee's  account  after 
distribution,  §   1701. 


PROBATE     COURT— PROBATION     OFFICERS,  WU 

Chambers,  power  of  court  at,  §  166. 

Citation,  how  directed.  §  1707. 

Citation,  how  issued,   §   1708. 

Citation,  how  served,   §   1709. 

Citation,    what    to    contain,    §     1707, 

Citation  by  personal  notice,  §  1710. 

Citation  to  be  served  five  days  before  return,  §  1711, 

Costs,  by  whom  to  be  paid,  §  1720. 

Court  to  try  case  when  no  jury  demanded,   §   1717. 

Decrees  of,  need  not  recite  jurisdiction,  §  1704. 

Decrees  of,  to  be  entered  in  minutes,  §  1704. 

Decrees  of,  to  be  recorded,  §  1719. 

Decree,  recorded,  as  notice,  §   1706. 

Guardian,  appearance  by,  §  1722. 

Guardian,  appointment  of:    See  Guardian,  I. 

Guardian,   service   of  notice   upon,    §    1722. 

Issues  joined,  how  tried  and  disposed  of,  §  1716. 

Judgments  of,  entered  and  enforceable  as  other  judg- 
ments are,  §  1716. 

Jury  trial  where  issues  of  fact  joined,  §   1717. 

New  trial,  §§  1714,  1717. 

Notice,  personal,  to  be  by  citation,  §  1710. 

Notice,  recorded,  order  or  decree  as,  §  1706. 

Orders  of,  need  not  recite  jurisdiclion,  §   1704. 

Orders  of,  to  be  entered  in  minutes,  §  1704. 

Order,  recorded,  as  notice,  §  1706. 

Personal  notice  to  be  by  citation,  §  1710. 

Power  of,  at  chambers,  §  160. 

Practice,   rules   of   in   general,    §    1713. 

Practice  of,  sections  of  code  governing,  §  171S. 

Preferences  given   to  appeals  in   probate,    §    .'^7. 

Public  administrator,  §§  1726-1744.     See  Public  Admin- 
istrator. 

Publication,  how  often  to  be  made,  §  1705. 

Recorded  order  of  decree  as  notice,  §  1706. 

Service   on   guardian,   equivalent   to   service   on   ward, 
§  1722. 

Transfer  of  books,  papers  and  actions  to  superior  court 
§  79. 

Vacancy  in  trusteeship,  filling,  §  1702. 

Writs  and  process  necessary  may  be  issued  at  cham- 
bers, §  166. 

Wills,  probate  of:   See  Wills,  VTI,  X,  XI. 

PROBATION   OFFICERS,  appointment,  intention  of  act    § 
131,  sub.  9. 


1014  ruOBATIOX   OFFICERf 

Conditions  of  probation,  furnishing  to  child,  §  131,  sub. 

11. 
Conditions   of  probation,  violation  of,  proceedings  on, 

§  131,  sub.  10. 
Courts,  in  what  courts  to  serve,  §  131,  sub.  12. 
Creation  of  office  of,  §  131,  sub.  7. 
Deputies,  creation  of  office  of  deputy,  §  131,  sub.  7. 
Deputies,  number  of,  §  131,  sub.  5. 
Deputies,  appointment  of,  §  131,  sub.  7. 
Deputies,  appointment,  intention  of  act,  §  131,  sub.  9. 
Deputies,  additional,  serve  without  salary,  §  131,  sub.  5. 
Deputies,     additional,     appointment    and    removal    of, 

§  131,  sub.  5. 
Deputies,  allowance  and  payment  of  expenses,  §   131, 

sub.  6. 
Deputies,  duties  and  powers  of,  §  131,  sub.  8. 
Deputies,  powers  of  peace  officers,  have,  §  131,  sub.  13. 
Deputies,  in  what  courts  to  serve,  §  131,  sub.  12. 
Deputies,  removal   of,   §    131,   sub.  7. 
Deputies,  term  of  office  of,  §  131,  sub.  7. 
Duties  of,  §  131,  subs.  8.  10,  11. 
Examining  into  institutions.  §  131,  sub.  4. 
Expenses,  allowance  and  payment  of,  §  131,  sub.  6. 
Inquiry  into  antecedents  of  offender,  duty,  §  131,  sub. 

10. 
Number  of,   §   131,  sub.   5. 
Office  of,  creation  of,  §  131,  sub.  7. 
Peace  officers,  have  powers  of,  §  131,  sub.  13. 
Probation  committee,  appointment  of,  §  131,  sub.  1. 
Probation  committee,  appointment  of  officei's  and  depu- 
ties, §  131,  sub.  7. 
Probation  committee,  compensation,  act  without,  §  131, 

sub.  3. 
Probation  committtee,  intention  of  act,  §  131,  sub.  9. 
Probation    committee,    institutions,    examining    into,    § 

131,  sub.  4. 
Probation   committee,    institutions,   report   on,    §   131, 

sub.  4. 
Probation  committee,  number  of,  §  131,  sub.  1. 
Probation  committee,  oath  and  qualification,  §  131,  sub. 

1. 
Probation  committee,  term  of  office,  §  131,  sub.  2. 
Probation  committee,  vacancies,  how  filled  and  term  of 

appointee,   §   131,  sub.   2. 
Records,  keeping  and  inspection  of,  §  131,  sub.  10. 
Removal   of,   §   131.   sub.   7. 
Report  and  recommendation  on  child,  §  131,  sub.  10. 


PROBATION    OFFICERS— PROFITS.  Hi'o 

Report  of  violation  of  terms  of  probation,  §  131,  sub. 

11. 
Report  on  child  released  on  probation,  §  131,  sub.  10. 
Term  of  office  of,  §  131,  sub,  7. 
PROCESS:   See   Summons. 
Abbreviations,  §  186. 
Abuse  of,  contempt,  §  1209. 
Abuse  or  disobedience  of,  a  contempt,  §  1209. 
Amendment  of,  power  of  court,  §   128. 
Chambers,  power  of  judge  at,  to  issue,  §§  165,  166. 
Contempt,  for  abuse  of,  §  1209. 
Defined,  §  17. 
Discharge    of   persons     imprisoned    on     civil     process, 

§§   1143-1154. 
Disobedience  of,  contempt,  §   1209. 

EJxecution  of,  where  new  county  formed,  p.  780,  Stats. 
Guardian,  service  on,  as  service  on  ward,  §   1722. 
How  far  extends,  §  78. 
Inter-ference  with,  contempt,  §   1209. 
Joint  debtors,  to,  after  judgment,  §§  989-991. 
Justices  court,  issuance  in,  §  91. 
Justice's   court,    from,    duty   of   sheriff   and    deputy   to 

serve,    §   87. 
Justice's  court,  in,  payment  of  fees,  §  91. 
Justice's  court,  may  issue  to  any  part  of  county,  §  919. 
Justice's  court,  to  be  issued  without  blanks,  §  920. 
Language  to  be  used  in,  §  185. 
Mistalie,  relief  from,   §   473. 

Mode   of  carrying  jurisdiction  into  effect,   §   187. 
Power  of  court  to  amend  and  control,  §  128. 
Power  of  judges  at  chambers,  to  issue,  §§  165,  166. 
Return  of,  in  justice's  court,  §§  87,  89. 
Seal,  want  of,  not  to  affect,  when,  p.  781,  Stats. 
Service  in  case  of  nonresidents,  §  1015. 
Service  by  telegraph,  §  1017. 
Service  on  associates  in  business,  §  388. 
Service  on  necessary  parties  ordered  in  by  court,  §  389. 
Service  on  guardian,  §  1722. 
Service  on  persms  transacting  business  under  common 

name,  §  388. 
Signifies  what,  §  17. 
Superior    court,    process    of,    extends    to    all    parts    of 

state,  §  78. 
Telegraph,  service  by,  §  1017. 

PROFITS:  See  Executors  and  Administrators,  V. 
From  time  of  execution  to  redemption,  §  707. 
Mesne,  limitation  of  actions  for,  §  336. 


1016  PROHIBITION— PUBLIC   ADMINISTRATOR. 

PROHIBITION,  alternative,  requisites  of,  §  1104, 
Alternative  or  peremptory,  §  1104. 
Appeal,  §  1109. 

Appeals,  code  sections  relating  to  apply,  §  1110. 
Code  sections  that  apply  to,  §§  1105,  1109,  1110. 
Counterpart  of  mandamus,   §   1102. 
Defined,  §  1102. 

Effect  of  on  proceedings  in  inferior  tribunal,  §  1102, 
Hearing  at  any  time,  §  1108. 
Holidays,  may  be  issued  and  served  on,  §  76. 
In  what  cases  may  issue,  §  1103. 
Issued  on  affidavit,  §  1103. 

Limitation  of  action,  eifect  of  prohibition,  §  356. 
May  be  issued  or  served  any  day,  §  134. 
New  trial  in,  §  1109. 

New  trials,  code  sections  relating  to,  apply,  §  1110. 
Peremptory,   requisites   of,    §    1104. 
Rf'tuin  and  hearing  may  be  at  any  time,  §  1108, 
Superior  judge  or  court  may  issue,  §   76. 
Supreme  court  may  issue,  §  51. 
Supreme  court  may  not  grant  at  chambers,  §  165. 
To  whom  may  Issue,  §  1103. 
What  courts  may  issue,  §  1103. 
What  sections  cf  code  apply  to,  §§  1105,  1109. 
When  will  issue.  §  1103. 

PROOF:   See   Evidence. 

PROPERTY,  definition  of  injury  to,  §  28, 
Includes  real  and  personal,  §  17. 
Joinder  of  actions  for  injuries  to,  §  427. 

PROSECUTION,  dismissal  of  action  for  want  of,  §  583. 

PROVISIONAL    REMEDIES,    affidavit    may    be    used    on 

§  2006. 

PUBLIC  ADMINISTRATOR,  account,  failure  to,  a  mis- 
demeanor, §  1744. 

Account,  failure  to,  duty  of  district  attorney,  §  1744. 

Account,  failure  to,  punishment  for,  §   1744, 

Account,  copy  of  to  be  filed  with  estate,  §  1739. 

Account,  order  for,  §  1735. 

Accounting  to  county  clerk,  time  of,  §  1739. 

Accounting  and  delivering  up  estate,  where  executor 
appointed,  §  1730. 

Act  requiring  coroner  to  act  as  in  certain  cases,  p.  781 

Bond  of,  §  1727. 

Civil  officers  to  notify  of  property  subject  to  waste, 
S  1731. 


PUBLIC   ADMINISTRATOR.  1017 

Code  sections  applicable  to,  §  1743. 

Compensation  and  allowances  of,  §  1618. 

Deposit  of  moneys  with  county  treasurer,  §  1737. 

Deposit  with  county  treasurer,  duties  and  compensa- 
tion of  treasurer,  §  1737. 

Deposit  with  county  treasurer,  investment  by  treasurer, 
§  1737. 

Deposit  with  county  treasurer,  payment  of  unclaimed 
money  into  state  treasury,  §  1737. 

Deposit  with  county  treasurer,  money,  how  drawn, 
§  1737. 

Deposit  of  funds  with   corporation,   p.   769,    §   3,   Stats. 

Duty  of  persons  in  whose  house  stranger  dies,  to  give 
notice    to,   §    1728. 

Escheat,  §   1737. 

Estates  which  may  be  administered  by,  §  1726. 

Every  six  mouths  return  of  condition  of  estate  to  be 
made,    §    1736. 

Examination  of  one  charged  with  embezzlement,  ques- 
tions to  be  written,  signed  and  filed,  §  1734. 

Examination  of  one  charged  with  embezzlement,  pun- 
ishment for  disobedience  or  refusal  to  answer, 
§  1734. 

Examination  of  person  charged  with  embezzlement  or 
withholding  estate,  §  1733. 

Failure  to  account,  a  misdemeanor,  §  1744. 

Failure  to  pay  over  money,  proceeding  against,  for, 
§  1740. 

Fees  of  officers,  when  and  by  whom  paid,  §  1741. 

How  to  administer,  §   1729. 

Inventory,  §   1729. 

Letters  of,  when  and  how  obtained,  §  1727. 

Must  institute  suits  to  recover  property,  §  1732. 

Must  take  out  letters  with  reasonable  dispatch,  §  1727. 

Not  to  be  interested  in  payments,  §  1738. 

Oath  of,   §   1727. 

Oaths  may  be  administered  by,  §  1742. 

Order  for  delivery  of  property  to  heirs  or  executors, 
§  1735. 

Order  of  appointment,  §  1365. 

Order  on,  to  turn  property  over  to  county  treasurer, 
§  1740. 

Order  on,  to  account,  §  1735. 

Proceedings  against  for  failure  to  pay  over  money, 
§   1740. 

Report,  affidavit  that  he  is  not  interested  in  payments, 
S  1738. 


1018  PUBLIC    ADMTNISTn.\TOn-QUESTION3    OF    LAW. 

Return  of  coiulilion    of   estate   to   be  made   every   six 

months  and  published,  §  1736. 
Unclaimed  estate,  how  di.sposed  of,  §  1789. 
Waste,  civil  otSeer  must  inform  of,  §  ]',:;!. 
What  estates  may  be  adminlsLered  by.  §  1726. 
When  may  be  directed  to  take  estate,  §  1411. 
When  to  account  for  estate,  §   1730. 
When  to  deliver  up  estate,  §  1730. 
When  to  settle  with  county  clerk,  §  1739. 
When  to  be  appointed,  §  13G5. 

PUBLICATION,  affidavit  to  prove,  §  2010. 
Changed  names,  of,  §  1279. 
Default,  where  service  by,  procedure,  §  585. 
Judgment-roll,   where  summons  served   by,   §  G70, 
Newspaper,   publication  in,  how  pi'oved.  §   2010. 
Notice  of  dissolution  of  corporation,  §  1230. 
Notice  of  petition  for  probate,  of,  §  1303. 
Notice  to  lienholders,  on  partition,  service  of,  by.  §  7G2. 
Order  for  sale  of  ward's  property,  of,   §  1783. 
Order  to  appear  in  escheat  proceedins',s,  of,  §  12G9. 
Petition  for  change  of  name,  of,  §  1277. 
Probate  proceedings,  publications  in,  number  of,  §  1713. 
Probate  proceedings,  how  often  to  be  made  in  general, 

§  1705. 
Service  on  unknown  or  nonresident  parties  in  partition, 

§  757. 
Summons,  of,  default  for  failure  to  answer,  §  5S5. 
Summons,  when  and  how  made,  §§  412,  413. 
Summons  in  partition,  §  757. 
Summons   to    unknown    parties   in    suit    to    quiet    title, 

§  750. 

PUBLIC   LAND,   certificate  of  purchase  or  of  location  as 

evidence,  §  1925. 
Adverse  possession,   effect  on  certificate  of  location  or 

purchase,  §  1925. 
Holding   for     mining     purposes,    effect    on     certificate, 

§  1925. 
Void  letters  patent,  limitation  of  action  to  recover  land, 

§  317. 

PUBLIC  OFFICER:   See  OfHcer. 

PUBLIC  USE,  §  1238.     See  Eminent  Domain. 

QUESTIONS  OF    LAW  AND    FACT.     Fact,    questions    of, 
to  be  tried  by  jury,  §  2101. 


QUESTIONS  OF  LAW  AND  FACT— QUIETING  TITLE.        1013 

Issues  of  fact,  how  tried,  §  592. 

Issues  of  fact  to  be  tried  by  jury  unless  waived,  §  882. 

Issues  of  law,  how  tried,  §  591. 

Law,  questions  to  be  addressed  to  court,  §  2102. 

Law,  what  are  questions  of,  §  2102. 

V\'rit  of  possession,  §  380. 

QUIETING  TITLE.  Action  involving  validity  of  gift  or 
trust  under  will,  determination  final,  §  738. 

Action  involving  validity  of  gift  or  trust  under  will, 
will  admissible,  §  738. 

Action  lies  to  determine  adverse  claim  in  what  cases, 
§§  738,  749. 

Action  to  be  brought  in  county  where  land  is,  §  78. 

Adverse  claim,  action  to  determine,  §  1050. 

Adverse  claims  may  be  determined  in  condemnation 
proceedings,   §   1247. 

Adverse  claim,  parties  in    -'lit  to  determine,  §§  380,  381. 

Costs,  when  plaintiff  cannot  recover,  §  739. 

Cotenants  may  unite  in  suit  to  determine  adverse  claim, 
§  381. 

Cumulative,  remedy  is,  §  751. 

Default,  §  739. 

Disclaimer,  §  739. 

Hearing  and  evidence,   §  751. 

Heirs,  quieting  title  by,  §  1452. 

Improvements,  §  741. 

Injunction,  §  526. 

Judgment  in  and  conclusiveness  of,  §§  750,  751 

.lury  trial,  right  to,  §   738. 

Jurisdiction,  court  has  to  inquire  into  and  determine 
what  questions,  §  751. 

Lis  pendens,  to  be  filed,  §  749. 

Parties,  §§  379,  738. 

Parties,  unknown  defendants,  how  described,  §  749. 

Possession  of  executor  for  purpose  of,  §  1581. 

Suit  for,  by  or  against  executor,  §  1582. 

Summons,   form   and   contents  of,  §   750. 

Summons,  posting  copy  on  property,  §  750. 

Summons,   publication    of,    §    750. 

Summons,  service  of,  §  750. 

Summons,  service  of,  affidavit  as  to,  §  750. 

Summons,  service  on  unknown  or  nonresident  defend- 
ants, §  750. 

Summons,  time  to  issue,  §  750. 

Survey,  etc.,  of  property,  §§  742,  743. 

Title,  termination,  during  action,  §  740. 


1020  QUIETING  TITLE— REAL   PROPERTY. 

Unknown  parties,  claims  of,  how  determined,  §§  749 
751. 

Unknown  parties,  hearing  of  adverse  claim  and  Judg- 
ment,   §    751. 

Unknown  defendants,  how  may  be  described  in  com- 
plaint, §  749. 

Unknown  parties,  judgment  by  default  not  entered, 
§  751. 

Unknown  parties,  rights  and  liabilities,  §  750. 

Unknown  parties,  judgment,  conclusiveness  of,  §  751. 

Unknown  parties,  summons,  how  served,   §  760. 

Unknown  parties,  summons,  issued  to,  §  749. 

QUI   TAM  ACTION,  limitation  on,  §  340. 

QUORUM,  arbitrators,   §§   1053,  1285. 

Majority  may  act  where  joint  authority  given,  §  15. 
Referees.  §   1053. 

Senate  sitting  as  court  of  impeachment,  quorum  of, 
§   36. 

QUO    WARRANTO:    See    Usurpation    of   Office   and    Fran- 
chise. 
Superior  court  or  judge  may  issue,  §  76. 

RAILROAD  CORPORATION,  eminent  domain,  §  1238. 

Condemnation  for  estimating  cost  of  fences  and  cattle- 
guards,  §  1248. 

RAILROADS.     Crossings,  how   to  be   made,   §   1240. 
Crossings,  separation  of  grades,  §  1240. 

REAL  PROPERTY,  acknowledgment  of  conveyance,  any 
judge  or  justice  may  take,  §  179. 

Actions  respecting,   must  be  brought  where,  §  392. 

Action  to  recover  possession,  costs  of  course  allowed, 
when,  §  1022. 

Adverse  possession  of,  §§  318  et  seq.  See  Adverse  Pos- 
session. 

Agreement  for  sale  of,  to  be  written,  §  1973. 

Arbitration,  question  of  title  may  not  be  submitted  to, 
§  1281. 

Attachment  of,  manner  of,  §  542. 

Attachment  of,  release,  §  559. 

Authority  of  agent  to  sell,  to  be  written,  f  1978. 

Boundaries,  rules  for  determining,  §  2077. 


REAL   PROPERTY.  -  1021 

Claimants   under   common    source   of  title   may   unite, 

§  381. 
Cloud  on  title,  parties  in  suit  to  remove,  §  381. 
Coextensive  with  what,  §  17. 
Contract  for  purchase  of,  by  decedent,  sale  of,  §§  1565- 

1568. 
Costs  allowed  of  course  in  action  involving  title,  §  1022. 
Cotenants,  parties  in  suits  concerning,  §  381. 
Defendants    In    action    to    determine    adverse    claims, 

§  380. 
Description  of  In  pleading,  §  455. 
Description  of,  rules  for  construing,  §  2077. 
Ejectment:    See  Ejectment. 
Execution  affecting,  to  issue  to  whom,  §  687. 
Execution   purchaser  may  recover  for  injury  to,  after 

sale  and  before  delivery,  §  746. 
Execution  sale  of,  how  conducted,  §  694. 
Execution  sale,  injury  to,  after,  §  746. 
Execution  sale  of,  notice,  §  692. 
Execution  sale  of,  redemption,  §  701. 
Execution  sale  of,  what  title  passes,  §  700. 
Forcible  entry,  etc.,   §§   1159-1179.     See  Forcible  Entry 

and  Detainer. 
Injury    to,    after    execution    sale    and    before    delivery, 

§  746. 
Issue    of   title,   evidence    of    continued   possession,   of 

remote  occupant,  §  1834. 
Joinder  of  claims  to  recover,  §  427. 
Judgment  after  death  not  lien  on,  §  669. 
Judgment  for  delivery  of,  §  682. 
Judgment  lien  on,  §  671. 

Judgment  lien  on,  in  another  county,  §  674. 
Judgment  of  justice's  court  a  lien  on,  when,  §  900. 
Lien  on,  action  to  foreclose,  where  brought,  §§  78,  392. 
Limitation   of  actions    respecting:    See   Limitation    of 

Actions. 
Lis  pendens,  filing  of  in  action  relating  to,  §  409. 
Mortgage  on  action  to  foreclose,  where  brought,  §  392. 
New  parties  in  action  relating  to,  bringing  in,  §  389. 
Parties  in  action  respecting,  §  379. 
Partition  of,  §§  752-801.     See  Partition. 
Party,    application    of   person    to   be   made.    In   act'on 

respecting,  §  389. 
Pleadings,  description  in,  §  455. 
Presumptions  as  to  possession  of,  §  321. 
Quieting  title,  §§  738-751.     See  Quieting  Title. 
Re-entry  after  eviction,  when  a  contempt,  §  1210. 


1022  REAL  PROf'KRTY-  HECEIVER. 

Return  of  execution  on,  §  CS3. 

Suit  to  recover:   See  Ejectment. 

Title,  question  of,  may  not  be  submitted  to  arbitration, 
§  1281. 

Transferred  cases  concerning,  proceedings  after  judg- 
ment, §  400. 

Trespass  on,  limitation  of  action  for,  §  338. 

Undertaking  on  appeal  to  stay  judgment  for  sale  or 
delivery  of  realty,  §  945. 

Writing,  necessity  of,  to  create  an  interest  in,  §§  1971, 
1972. 

REASONABLE   DOUBT,  evidence,  §  2061. 

RECEIPT  as  evidence  of  payment,  §  1963. 

For  payment  of  rent,  presumptions  arising  from,  §  1963. 
For  securities  in  partition  proceedings,  §  790. 
Sheriff's,  for  accounts  collected  in  attachment,  §  547. 
Who  entitled  to,  §  2075. 

RECEIVER,  action,  may  bring,  §  568. 
Action,  may  defend,  §  5G8. 
Appeal  lies  from  order  appointing,  §  963. 
Attorney  cannot  be,  §  5C6. 
CJode    sections     governing     appointment,    powers     and 

duties,  §  304. 
Collection  of  debts,  rents,  etc.,  §  568. 
Compromise,  may,  §  EG8. 
Corporation  may  act,  §  1348. 
Corporation,  statute  authorizing  to  act  as,  p.  768. 
Corporation   as,   qualilication,  oath,   bond,   §   1348. 
Corporation,  for,  §§  564,  565. 
Creditor,  appointment  in  action  by,  §  564. 
Debts,  may  collect,  §  568. 
Disqualification  of  persons  to  act  as,  §  566. 
Escheated  estate,  for,  §  1270. 
Ex  parte  application  for,  undertaking,  §  566. 
Ex  parte  application  for,  additional  undertaking,  §  566. 
Execution  in  aid  of,  §  564. 
Foreclosure,  a,ppointment  in,  §  564. 
Fraudulent  purchase,  appointment  in  action  to  vacate, 

§  564. 
Funds  in  hands  of,  may  be  invested,  §  569. 
Grounds  for  appointing,  §  564. 
Investment  of  funds  in  hands  of,  §  569. 
Judgment,  to  carry  into  effect,  §  564. 
Judgment,  appointment  after,  §  564. 


RECEIVER-RECORD.  1023 

Oath  of,  §  567. 

Partnership  cases,  appointment  in,  §  564, 

Possession  of  property,  §  568. 

PoTvers,  §  5G8. 

Rents,  may  receive,  §  568. 

Undertaking,  additional,  on  appointment  of,  §  566. 

Undertaking  on  appeal,   to   stay   judgment  appointing. 

§  943. 
Undertaking  on  ex  parte  application  for,  §  566. 
Undertaking  of,  §  567. 
When  may  be  appointed,  §  504. 
Who  may  not  act  as,  without  consent  of  parties,  §  566. 

RECITALS,  conclusiveness  of,  §  1962. 
Statutes,  recitals  in,  effect  of,  §  1903. 

RECORD:   See  Evidence;    Lis   Pendens. 

Abstract    of    justice's    judgment    must    be    recorded    to 

create  lien  on  land,  §  900. 
Actions,  of,  clerk  must  keep,  §  1052. 
Act  transferring  records  of  old  courts  to  courts  created 

by  new  constitution,  p.  782. 
Appeal,  what  constitutes  record  on,  §  CGI. 
As  evidence:    See  Evidence. 
Attachments,  recorder  to  index,  §  542. 
Attachments,  how  indexed,  §  542. 
Attachment,  release  of,  to  be  recorded,  §  559. 
Attachment,  release  of,  how  recorded,  §  559. 
Certificate  of  recording  officer  prima  facie  evidence  of, 

§  1833. 
Citizen  may  inspect,  §  1892. 

Copy  of  foreign  judicial  rc-cord,  when  admissible,  §  1907. 
Copy  of,  officers  to  give,  §  1893. 
Copy  of,  seal,  §  153. 

Court,  parties  cannot  contradict  record  of,  §  1837. 
Courts  of,  what  are,  §  34. 
Decedent's  estate,  lease  of,  recording,  §  1579. 
Docket,  justice's,  a  public,  §  93. 
Execution,  return  of,  §  683. 

Executor's  conveyance,  recording,  §§  1601,  1604,  1605. 
Guardian's  bond  and  letters,  recording,  §  1756. 
Lease  of  decedent's  estate,  recording,  §  1579. 
Letters  of  administration,  and  testamentary,  recording, 

§  1337. 
Lis  pendens,  §  409. 
Mechanic's  lien,  recording,  §  1189. 
Mechanic's  lien,  claim  of,  §  1187. 


1024  RECORD— REFERENCE. 

Mortgage  of  decedent's  estate,  recording,  §  1579. 
Notice    of   completion   of   building,   fee   for   recopding, 

§  1187. 
Not  to  be  removed  from  office,  §  1950. 
Partition,  of  conveyance  in,  §  787. 
Partition  of  decedent's  estate,  recording,  §  1684. 
Probate  homestead,  decree  relative  to,  §  1719. 
Public,  dockets  and  papers  of  justice,  §  914. 
Public,  of  private  writing,  how  proved,  §  1919. 
Public,  not  to  be  removed  from  public  office,  §  1950. 
Recorded  probate  proceedings  as  notice,  §  1706. 
Register  of  actions,  what  to  be  entered  in,  §  1052. 
Transfer  from  old  court  to  new,  §§  55,  79. 
What  constitutes,  on  appeal,  §  G61. 

REDEMPTION,  decedent's  estate,  of,  by  judgment  debtor, 

§  1505. 
Execution,  from,  §§  701,  707. 
Execution,  from,  notice,  §  703. 
Execution,    from,    payment    of     taxes,    interest,    liens, 

§§  702,  703. 
Execution,  from,  who  may  make,  §  701. 
Mortgage:   See  Mortgages. 

Mortgage,  note  of  record  of,  to  be  produced,  §  705. 
Payment,  to  whom  to  be  made,  §  704. 
What  necessary  to,  §  705. 

RE-ENTRY  on  property  after  eviction,  when  a  contempt, 
§  1210. 

REFERENCE,  account,  of  long.  §  639. 

Account  of  executor,  referring  to  referee,  §  1636. 
Account,  reference  of,  on  judgment  by  default,  §  585. 
Account,  reference  of,  questions  involving,   §  639. 
All  must  meet,  but  a  majority  may  act,  §  1053. 
Attorney,  accusations  against,  §  298. 
Bill  of  exceptions,  settlement  by  referee,  §  650. 
Consent,  by,  when  may  be  ordered,  §  638. 
Continuance,   costs   may   be  imposed   as    condition    of, 

§  1029. 
Court  commissioner,  to,  §  640. 
Decedent's  estate,  claims  against,  §§  1507,  1508. 
Default,  reference,  when  may  be  ordered,  §  585. 
Depositions,  to  take,  in  proceeding  to  remove  attorney, 

§  298. 
Evidence,  rules  of,  in  general,  §  2103. 
Failure  of  parties    to    agree,    appointment    by    judge, 

§  640. 


REFERENCE— REMITTITUR.  lua» 

Finding,  effect  and  force  of,  §§  644,  645,  1507. 

Finding,  how  excepted  to  and  reviewed,  §  645. 

For  information  of  court,  §§  638,  G39. 

Issue,  of,  by  court,  §  592. 

Judgment  on  finding,  §  644. 

Judgment-roll,  findings  of  referee  part  of,  §  670. 

Objections  to  referee,  §§  641,  642. 

Ordered  on  motion,  in  what  cases,  §  639. 

Ordered  upon  agreement  of  parties  in  what  cases, 
§  638. 

Partition,  in,  to  determine  lienholders'  rights,  §  761. 

Partition  proceedings,  in,  §§  761  et  seq.     See  Partition. 

Question  not  arising  upon  pleadings,  of,  §  639. 

Referee,  decision  of,  meaning  of,  §  1033. 

Referee,   disqualification  of,  grounds  for,   §   641. 

Referee,  fees  of,  amount  of,  §§  1028,  1508. 

Referees,  number  of,  §  640. 

Referee,  objection  to,  grounds  for,  §  641. 

Referee,  objections  to,  procedure  on,  §  642. 

Referee,  qualifications  of,  §  641. 

Referee,  quorum,  §  1053. 

Referee,  what  disqualifies,  §  641. 

Referee,  who  may  not  act  as,  §  641. 

Repovt,  findings  of  fact  and  conclusions  of  law,  sepa- 
rately  stated,    §   C43. 

Repoit  to  be  made  within  twenty  Aays,  §  643. 

Seamen,  of  claims  of,  §  826. 

Statement  on  motion  for  new  trial,  when  case  tried 
before  referee,  §  659. 

Supplementary  proceedings,  disobedience  of,  con- 
tempt, §  721. 

When  ordered  after  judgment  on  demurrer,  §  636. 

When  parties  do  not  consent,  §  639. 

REGISTER  of  actions,  clerk  must  keep,  §  1052. 

REHEARING,  in  supreme  court,  §  43. 

RELATIONSHIP:   See  Affinity;   Consanguinity. 
Declarations  of  decedent  respecting,  §  1870. 

REMEDY,  judicial,  defined  and  classified,  §§  20,  21. 
Merger  of  civil  and  criminal,  §   32. 
See  Actions. 

REMITTITUR,  §§  56,  958. 
Code    CivU    Proc.— 65 


1026  RENEWAL— RESPONDENT. 

RENEWAL,  application  for  order,  of,  §  182. 

Execution  in  justice's  court,  renewal  of,  §  903. 

RENTS:   See  Estate  of  Decedent;  Landlord  and  Tenant. 
From  time  of  execution  to  redemption,  §  707. 
Limitation  of  actions  respecting,  §§  319,  336. 
Receiver  may  collect,  §  568. 

REPLEVIN,  §§  509-521.     See  Claim  and  Delivery. 

REPORTER,  phonographic,  §§  268-274.    See  Phonographic 
Reporter. 
Supreme  court  decisions,  §  262. 

REPUTATION,    common,    evidence    of    when    admissible, 
§   1870. 
Presumption  of  ownership  from,  §  1963. 

RESCUING  person,  contempt,  §  1209. 

RES  GESTAE,  evidence  admissible  as,  §§  1850,  1870. 

RESIDENCE.     Nonresident,  place  of  action  against,  §  395. 
Of  justices  of  peace,  §  159. 
Of  superior  judges,  §  158. 

RES  JUDICATA,  conclusiveness  of  judgment,  general  rules, 

§   1908. 
Conclusive,  judgment  is,  when  §  19G2. 
Conchisivtncss,  judicial  record   may   be   impeached,  on 

what  grounds,   §   1916. 
Conclusiveness,  what  deemed  adjudged,   §   1911. 
Conclusiveness,  parties,  when  deemed  the  same,  §  1910. 
Conclusiveness,    action    involving    validity    of   gift  or 

trust,  §  738. 
Conclnsiveness  of  foreign  judgment,  §  1915. 
Conclusiveness,    judgment    of    court     of     admiralty     of 

foreign  country,  §  1914. 
Orders  as,  §§  1908,  1909,  1962. 
Parties  deemed  same,  when,  §  1910. 
Recoiil  of  another  state  as,  §  1913 
Record  of  court  of  admiralty  as,  §   1914. 

RESPONDENT,   who  is,   §   938. 


RI^STITL'TION-  REVIEW,     WRIT     OF.  1S)27 

RESTITUTION  of  property  on  reversal,  §  957. 

RETROACTIVE  force  of  code,  §  3, 
Statute  of  limitatious,   §   362. 

RETURN:   See  Executions;   Summons. 
Certiorari,  §   1070. 
Certiorari,  of,  perfecting,  §  1075. 
Execution,  of,  time  for,   §   683. 
Officer  summoning  jurors,  of,   §§  227,  232. 
Summons  returned,  how,  §  410. 

REVIEW,  WRIT  OF,  application  for,  how  made    §  1069 
Chambers,  powers  at,  §§  165,  166. 
Clerk   to   return    writ   with    transcript   required,    when, 

Code  sections  relating  to  appeals  apply,  §  mo. 
Code  sections  relating  to  new  trials  apply    §  mo 
Code   sections   relating   to   rules   of  practice   appiy   to 

§  1109.  ^^^       ' 

Contents  of,  §  1071. 
Costs,   §   1032. 
Directed  to  whom,  §  1070. 
Extent  of  review  under,  §  1074. 
Form  of  writ,  §  1071. 
Hearing,  §  1075. 

In  what  cases  may  issue,  §  1068. 
Judgment,   §   1075. 
Judgment,   copy   of   to   be    sent    to    inferior    tribunal 

§  1076.  ' 

Judgment-roll,   what  constitutes,   §   1077. 
Notice  of  application  for,  §  1069. 
Return  and  hearing  may  be  at  any  time,  §  1108. 
Return  of,  defective,  perfecting,  §  1075. 
Rules  of  practice,  §  1109. 
Scope  of  review  under,  §  1074. 
Service  of,  §  1073. 

Staying  proceedings  in,  in  inferior  court    §  1072 
Stay,  effect  of  as,  §  1072. 
Stay,  may  be  granted  or  not,  §  1072. 
To  whom  will  issue,  §   1068. 

Writ  of  certiorari  denominated  writ  of  review,  §  1067 
What  to  contain,  §  1071. 
Who  may  grant,  §1068. 


1028  REVIEW,     WRIT    OF— SAN    BERNARDINO    COUNTY. 

Whom  to  be  directed  to,  §  1070. 
When  may  be  granted,  §  1068. 

REVOCATION  of  wills:   See  Wills,  VI. 

RIOTS,  justice's  court  has  jurisdiction,   §   115. 

Limitation  of  action  against  municipality  for,  §  340. 

RIPARIAN   OWNERS,  condemnation  of    water,    damages, 
rules  for  ascertaining,  §  1248. 

RIVERS.     Boundary,  river  as,  §  2077. 

Venue  of  action  for  offense  on  river  situated  in  several 
counties,  §  393. 

ROADS.     Boundary,  road  as,  §  2077. 

ROLL  OF  ATTORNEYS,  how  kept,  §  280. 

ROUTS,  justice's  court  has  jurisdiction  over,  §  115. 

RULE  inconsistent  with  code,  repealed,  §  18. 
Of  construction  of  code,  §  4. 
Of  court,  courts  of  record  may  make,  §  129. 
Of  court,  limitation  on  power  to  make,  §  129. 
Of  justice's  court,  §  95. 
When  take  effect,  §  130. 

SACRAMENTO  COUNTY,  number  of  superior  judges,  §  66. 
Act  increasing  number  of  superior  judges  in,  p.  765. 

SALARY,  deputy  sheriff's,  in  justice's  courts,  §  87. 
Justices',  §§  97,  103. 
Justice's  clerk's,  and  his  deputy's,  §  97. 
What  necessary  to,  §  705. 
Justices'   clerk   and   assistants  in   cities    and    counties 

over  200,000,  pp.  776,  777,  Stats. 
Lien  for:     See  Lien. 
Preferred  claim,   §§  1204-1207. 

SALES:    See  Executions;    Foreclosure;   Partition. 

Over  two  hundred  dollars,   effect  of  statute  of  frauds, 
§  1973. 

SAN    BERNARDINO  COUNTY,  act  increasing  number  of 
superior  judges  in,  p.  7G6. 


SAN     DIEGO     COUNTY— SEAL.  102J 

SAN  DIEGO  COUNTY,  acts  increasing  and  lessening  num- 
ber of  superior  judges  in,  p.  7G6. 

SAN   FRANCISCO.     Classification  of    judges  as  to    terms 

of  office,  §  68. 
Judgments  and  orders  of  any  session  as  efiective  as  If 

all  judges  presided,  §  G7. 
Justices  of  tiie  peace  in,  salaries  of,  §  97. 
Justices'  cleric  and  assistants  in,  act  relating  to,  pp.  776, 

777. 
Number  of  superior  judges,  §  67. 

Police  court  of,  act  transferring  records  to,  p.  784,  §  3. 
Presiding  judge,  election  and  removal  of,  §  07. 
Presiding  judge   to   distribute    and     prescribe   order  ot 

business,    §    67. 
Superior  court,   presiding    judge  to  prescribe   times  of 

holding  special  sessions,  §  73. 
Superior  court,  sessions  of,  number  of,  §  67. 

SAN  JOAQUIN  COUNTY.     Number  of  judges,  §  66. 

SAN   LUIS  OBISPO  COUNTY,  acts  increasing  and  lessen- 
ing number  of  superior  judges  in,  p.  766. 

SANTA  CLARA  COUNTY.     Number  of  judges,  §  66. 
Act  increasing  number  of  superior  judges  in,  p.  766. 

SATISFACTION,  attorney  may  acknowledge,  §  283. 
Of  judgment,  how  made,  §  675. 

SAVINGS     AND     LOAN     ASSOCIATION,    dissolution    of, 

§  1234. 

SAVINGS  BANK,  deposits:   See  Estate  of  Decedent,  II. 
Limitation  of  action  against,  §  348. 

SCIRE  FACIAS,  abolished,  §  802. 

SEAL,  compromise  without,  good,  §   1934. 
Court,  of,  clerk  to  keep,  §  152. 
Courts,  of,  how  provided,   §   151. 
Courts,  of,  to  what  documents  to  be  affixed,  §  153. 
Courts,  what  courts  must  have,  §  147. 
Court,  of,  when  private  seal  used,  §  151. 
Court  commissioner,  of,  §  2i>^. 
Defined,  §§   14,  1930,   1931. 


1030  SEAI^SENATE. 

Distinction   between   sealed   and    unsealed   instruments 

abolished,  §  1932. 
Execution,  §  GS2. 
Foreign,  §  1931. 
Guardian,  §  153. 

Judicial  notice  taken  of,  §  1875. 
Police  court,  of,  §  150. 
Private,  how  made,  §  1931. 
Public,  how  made,  §  1931. 
Scroll  or  sign,   §   1931. 
Sealed  instrument   may   be    changed  or  discharged  by 

unsesled,  §  1932. 
Superior  court,  of,  §  149. 
Supreme  court,  of,  §   148. 
Telegram,  how  described  by,  §  1017. 
To  what  document  to  be  affixed,   §  153. 
Want  of  not   to   affect  validity   of   writs,  process,   etc., 

when,  p.  781,  Stats. 
"What  courts  shall  have,  §  147. 
Writ,  necessary   for,   §   153. 

SEALED  VERDICT,  §  617. 

SEAMEN:    See  Shipping. 

Exempt  from  jury  duty,  §  200. 

SEARCHER  OF  RECORDS,  what  property  of  exempt,  §  690. 

SECRETARY  of  supreme  court,  §§  265,  266. 

Of  superior  court,  in  certain  cities  and  counties,  p.  764, 
Stats. 

SECTION,  refers  to  what,  §  17. 
Meaning  of,  §  17. 

SEDUCTION.     Guardian   may  sue  for  seduction  of  ward, 
§  375. 
Limitation  of  action  for,  §  340. 
Parent  may  sue  for  daughter's,  §  375. 
Sitting  of  court,   private,   §   125. 
Unmarried  female  may  recover  exemplary  damages  for 

own,  §  374. 
Unmarried  female  may  sue  for  her  own,  §  374. 

SEISIN,  within  five    years,    when    necessary    to    recover 
realty,   §§   318,  319. 

SENATE:   See  Impeachment. 


SER\aCK— SHERIFF.  1031 

SERVICE:   See  Process. 

Affidavit,  service  provable  by,   §  2009. 

Appearance  equivalent  to,   §   416. 

Association,  on,  §§  388,  411. 

Attorneys,  on,  manner  of,  §  1011. 

Attorney  entitled  to  be  served  for  party,  §  1014. 

Certiorari,  of,    §    1073. 

Complaint,  copy  of,  §§  410,  527. 

Contempt  proceedings,   §  1016. 

Corporation,  oa,  §  411. 

Expense  of,  included  in  costs,  §  1021. 

Guardian,  on,  equivalent  to  service  on  ward,  §  1722. 

Injunction,  of  complaint  and  affidavit,  in,  §  527. 

Mail,  by,  computation  of  time,  §  1013. 

Mail,  by,  how  made,  §  1013. 

Mail,  by,  when  complete,   §  1013. 

Mail,  by,  when  may  be  made,  §  1012. 

Mandamus,   of,    §   1096. 

Need  not  be  made  if  defendant  does  not  appear,  §  1014. 

Nonresident,  on,  attorney,  §  1015. 

Nonresident,  on,  manner  of,   §   1015. 

Notice  and  papers,  how  served,  §  1011. 

Notices,    after    appearance     defendant    entitled    to    all, 

§  1014. 
Party,  on,  manner  of,  §  1011. 
Prohibition,  of  writ  of,  §§  1096,  1105. 
Proof  of,   §    415. 

Publication,  by,   §§  412,  413,  415. 
Review,  writ  of,   §  1073. 
Several  defendants,  some  served,  §   414. 
Subpoena,  of.  §§   1987,  1988. 
Telegraph,  by,  manner  of,  §  1017. 
Tenant  holding  over,  of  notice  on,  §  1162. 
Time  for,  extension  of.   §   1054. 

SETOFF,  assignment  of  chose  not  to  prejudice,  §  368. 

Bill  or  note,  assignments  not  affected  by  setoff,  §  368. 
Cross-demands   deemed   compensated,   §   440. 
Cross-demands    not   affected    by    death    or   assigiunent, 

§  440. 
Improvements,  as  in  ejectment,  §  741. 
Mechanic's  lien,  §  1184. 

SHAM   ANSWER,  striking  out,  §  453. 

SHERIFF:   See  Arrest  and    Bail;     Attachment;     Justice's 
Court. 


1032  SHERIFF. 

Action  asainst  for  nfficial  acts,  §  1055. 

Arrest  by,  how  made,  §  485. 

Attachment  of  vessel,  §§  819,  820. 

Attorney,  disqualification  to  act  as,  §   96. 

Bail,  liability  as,  on  bond,  §  502. 

Bail  money  to  be  deposited  in  court,  §  498. 

Bail,  when  liable  as,  §  501. 

Deed  of,  to  escheated   estate,  §  1271. 

Deed,  when  to  be  executed,  §  703. 

Deputies,  in  justices'  courts,   duties,   §  87. 

Deputies,  in  justice's  court,  liability  for,  §  87. 

Deputies,  In  justices'  courts,  salary,   §  87. 

Disqualification  to  act  as  attorney,  §  96. 

Duty  to  provide  suitable  rooms  for  Judge,  §  144. 

Escape,  limitation  of  action  against,  for,  §  340. 

Ex  ofiicio  officer  of  justices'  court,  §  87. 

Execution,  not  to  purchase  at,  §  694. 

Execution,   penalty   for  selling   under,   without   notice 

§  693. 
Execution,  writ  of,  requires  what  of,  §  682. 
Execution  may  issue  to  any,  §  687. 
Execution  sale:   See  Executions. 

Expenses  of  providing  suitable  rooms,  how  paid,  §  144. 
Indemnity  to,  on  claim  of  property,  §  689. 
Judgment   against,     conclusive   against   sureties,    when, 

§  1055. 
Jurors,  list  of,  to  be  delivered  to  sheriff,  §  219. 
Jurors,  summoning  forthwith,  §  226. 
Jurors,  summoning  to  complete  panel,  §  227. 
Justice's  court,  sheriff  an  officer  of,  §  87. 
Justice's  court,  sheriff,  attendance  and  duties  of,  §  87. 
Justice's  court,  sheriff,  deputy,  duties  of,  §  87. 
Justice's  court,  sheriff,  deputy,  salary  of,  §  87. 
Justice's  court,  sheriff,  ex  officio  officer  of,  §  87. 
Justice's  court,  sheriff,  liability  for  deputies,  §  87. 
Justice's  court,  sheriff,  liability  on  bond,  §  87. 
Justice's  court,  duty  to  provide  rooms  for,  §  88. 
Justice's  court,    duty  to   serve  process,  etc..   Issued    by, 

§  87. 
Liability  for  arrest  of  witness,  §§  2068,  2069. 
Liability    for    taking   property    of   third    person    under 

execution,    §    689. 
Liability  on  bond,  for  duties  In  justices'  courts,  §  87. 
Liability  to  third  person  in  replevin,  §  519. 
Limitation  of  action  against,  §§  339,  340. 
Official  bond,  liability  on  for  sheriff  as  bail,  §  502. 
Powers  and  duties  of,  prescribed  by  Political  and  PenaJ 

Codes,  §  262. 


SHERIFF— SHIPPING.  1033 

Receipt  of,  for  accounts  collected  in  attachment,  §  547. 

Requisition  to,  in  replevin,  §   511. 

Service  of  subpoena  en  concealed  witness,  §  1988. 

Sureties'  liability  for  default  in  deposit  made  in  lieu  of 
bail,  §  498. 

Summon  jurors,  how  to,  §  225. 

To  detain  prisoner  arrested  for  contempt  until  dis- 
charged, §  1214. 

To  notify  plaintiff  of  arrest.  §  804. 

SHERIFF'S  DEED,  when  to  be  executed,  §  703. 
To  escheated  estate,  §  1271. 

SHIPPING,  appearance,  who  may  enter  and  defend  action, 
§  821. 

Attached  vessel,  claims  of  seamen  against,  how  proved, 
§  826. 

Attached  vessel,  notice  of  sale,  §  824. 

Attached  vessel,  sale  of,  application  of  proceeds,  §  824. 

Attached  vessel,  sale  of,  application  of  proceeds  where 
claim  for  wages  involved,   §   825. 

Attached  vessel,  sale  of  at  auction,  §  824. 

Attachment  of  vessel,  claim  for  wages  may  be  asserted 
notwithstanding,    §    825. 

Attachment  of  vessel,  custody,  §  820. 

Attachm.ent  of  vessel,  discharge  of,  §  823. 

Attachment  of  vessel,  discharge  of,  how  procured, 
§  822. 

Attachment  of  vessel,  discharge  of,  undertaking  or 
deposit,   §   822. 

Attachment  of  vessel,  clerk  to  Issue,  §  818. 

Attachment  of  vessel,  right  of,  §  817. 

Attachment  of  vessel,  sheriff  may  not  interfere  with 
merchandise,   baggage,   etc.,    §   820. 

Attachment  of  vessel,  sheriff  must  execute  writ  with- 
out delay,  §  820. 

Attachment  of  vessel,  time  for,  §  817. 

Attachment  of  vessel,  undertaking,  §  818. 

Attachment  of  vessels,  undertaking,  exception  to  sure- 
ties, §  821. 

Attachment  of  vessel,  undertaking,  justification  of  sure- 
ties, §  821. 

Attachment  of  vessel,  who  may  defend  action,  §  821. 

Attachment  of  vessel,  writ  to  be  directed  to  what 
sheriff,  §  819. 

Claim  of  mariner  or  seaman,  contest  of,  §  826. 


1034  SHIPPING— SICKNESS. 

Claim  of  mariner  or  seaman,  failure  to  contest,  admis- 
sion, §  826. 

Claim  of  mariner  or  sea.man,  reference  of  on  contest, 
§  826. 

Claims  of  mariner,  review  of  finding  of  clerk  or  referee 
respecting,  §  826. 

Claims  of  seamen,  how  proved,   §   826. 

Claims  of  seamen  against  attached  vessel,  how  proved, 
§  826. 

Complaint  must  be  verified  in  action  against  vessel, 
§  815. 

Execution  against  ship,  where  claim  for  wages  assert- 
ed,   application   of   proceeds,    §    825. 

Execution  sale  of  vessel,  notice,  what  to  contain,  §  827. 

Jury  duty,  employee  of  vessel  is  exempt  from,  §  200. 

Justice's  court  has  no  jurisdiction,  §   114. 

Liens,  limitation  of  action  on,  §  813. 

Liens  on  vessels,  what  demands  constitute,  §  813. 

Notice  of  sheriff's  sale,  what  to  contain,  §  827. 

Owners,  action  to  be  against,  §  814. 

Owners  unknown.  §  814. 

Parties  defendant,  lienholders,  §  814. 

Parties  defendant  in  actions  against  vessel,  §  814. 

Res  judicata,  judgment  of  court  of  admiralty  as,  §  1914. 

Seamen's  wages,  exemption  of,  §  690. 

Seamen's  wages,  justice's  court  has  no  jurisdiction, 
§   114. 

Sheriff's  sale,  notice  of,  what  to  contain,  §  827. 

Summons,  service  on  master,  mate,  etc.,  §  816. 

Summons,  service  on  owners  of  vessel,  §  816. 

Vessels  are  liable  for  what  claims,  §  813. 

Vessels    liable    for    injuries,    §    813. 

Vessels  liable  for  services,  §  813. 

Vessels  liable  for  wharfage  and  anchorage,  §  813. 

Vessels  liable  on  contract  to  carry,  §  813. 

Wages  of  seamen,  claim  of  against  attached  vessel,  how 
proved,    §   826. 

Wages  of  seamen  may  be  asserted  notwithstanding  at- 
tachment of  ship,  how,  §  825. 

8H0RTH.AND  REPORTER,  §§  268-274.     See  Phonographic 
Reporter. 
None  in  attendance,  clerk  to  take  testimony,  §  1051. 

SICKNESS  excuses  non-appearance  in  contempt,  §  1221, 
Juror,  proceedings  in  case  of,  §  615. 
Justice,  transfer  of  cause,  §  90, 


SICKNESS— SOLE    TRADER.  1035 

Superior  judge,  appointment  of  substitute  by  governor, 
§  ICO. 

SIGNATURE  includes  mark,  §  17. 

Mark,  signature  by,  to  be  witnessed  by  two  persons, 

§  17. 
When  admitted,  §§  44G-449. 
When  admitted  in  juscice's  court,  §  887. 

SINGULAR  includes  plural,  §  17. 

SISTER  STATE,  books  containing  laws  of,  presumed  cor- 
rect, §  1900. 
Documents  of,  how  proved,  §  1918. 
Judgment  of,  how  enforced,  §  1913. 
Judicial  record  of,  effect  of,  §  1913. 
Judicial  record  of,  how  proved,  §  1905. 
Justice's  judgment  in,  how  proved,  §§  1921,  1922, 
Laws  of,  how  proved,  §  1902. 
Laws,  unwritten,  how  proved,  §  1902, 
Limitation  laws  of,  §  361. 

SfTTINGS,  public  and  private,  §§  124,  125. 

SLANDER,  answer  in,  §  461. 
Justification,  §  461. 
Limitation  of  action  for,  §  340. 
Mitigating  circumstances,  evidence  of,  §  461. 
Pleading  in  actions  for,  §  460. 
Undertaking  for  costs  in,  p.  778,  Stats. 

SOCIETY,  change  of  name,  §  1276. 

SOLE  TRADER,  decree  authorizing  one  to  act  as  §§  1817 
1819. 

Hearing  of  petition,  §  1816. 

Husband  of,  not  liable  for  her  debts,  §  1821. 

Liabilities  and  rights  of,  §  1819. 

Liable  for  maintenance  of  minor  children,  §  1820. 

May  have  five  hundred  dollars  of  community  or  hus- 
band's  property,    §    1814. 

Notice  of  application  to  become,  contents  of,  §  1812. 

Notice  of  application  to  become,  proof  of,  §  1816. 

Notice  of  application  to  become,  publication  of,  §  1812 

Oath  of,  §  1818. 

Opposition,  what  to  contain,  and  verification  of,  §  1815. 


1036  SOLE     TRADER— STATE. 

Petition,  what  to  contain  and  when  filed,  §  1813. 

Petition,  who  may  oppose,  and  how,  §  1815. 

Recording  decree  authorizing,  §  i818. 

Rights  and  liabilities  of,  §  1819. 

Trial,  §  1816. 

Who  may  become,  §  1811. 

SONOMA  COUNTY.     Number  of  judges,  §  66. 

SPECIAL    ADMINISTRATORS:   See    Executors    and    Ad- 
ministrators, X. 

SPECIAL  ISSUE  not  made  by  pleadings,  how  tried,  §  309. 

SPECIAL   PROCEEDING,  "action"  includes,  §  363. 

Appeals   in,    §    1110. 

Costs  on  review  other  than  by  appeal,  §  1032. 

Costs  of  course,  when  allowed,  §  1022. 

Defendant  in,  §  1063. 

Defined,  §  23. 

Judgment  in,  defined,  §  1064. 

Judgments  in,  appealability,  §  963. 

Motion  and  order  in,  same  as  in  civil  action,  §  1064. 

New  trials  in,  §  1110. 

Order  in,  §  1064. 

Particular   proceeding:   See   Particular  Title. 

Parties  designated,  how,  §   1063. 

Plaintiff,  §  1063. 

Reference,    §    639. 

Remedies,  divided  into  actions  and  special  proceed- 
ings, §  21. 

Rules  of  practice,  §  1109. 

Security  for  costs  required  of  nonresident  or  foreign 
corporation,   §   1036. 

Security  for  costs,  failure  of  nonresident  or  foreign 
corporation  to  give,  dismissal,  §  1037. 

Time  of  taking  depositions  in,  §  2020. 

Verification  may  be  by  aflidavit,  §  2009. 

SPECIFIC  PERFORMANCE,  contract  of  decedent  to  con- 
vey:    See  Executors  and   Administrators,  VIII. 
Powers  of  court,  statute  of  frauds,  §  1972. 

STATE,  answer  must  be  verified  when  state  party,  §  446. 
Bonds  not  required  of,  §§  529,  1058. 
Condemning  lands  of,   under  eminent  domain,   §   1240. 


STATE— STATEMENT.  1037 

Costs  when  state  a  party,  §  1038. 

Escheat,   §§   1269,   1272.     See  Escheat 

Execution  to  be  in  name  of  people,  §  682. 

Grantee  of,  limitation  of  action,  §  316. 

Includes  what,   §   17. 

Injunction  by,  underta.king  not  required,  §   529. 

Injunction  suspending  business  of  corporation,  §  531. 

Limitations  in  actions  by  generally,  §  345. 

Limitations  in  action  for  hospital  dues,  §  345. 

Limitation  of  action  by,  for  forfeiture  or  penalty,  §  340. 

Limitation     of    action     by,     respecting     real    property, 

§§  315,  317. 
Proceedings,  against,  act  authorizing,  p.   784. 

STATE  LAND:    See  Public  Land. 

Condemnation  of:   See  Eminent  Domain. 

STATEMENT,  amendments,  extension  of  time,  §  1054. 
Appeal,  on,  amended,  service  of,  §  601. 
Appeal,  on,  amendment  of,  §  661. 
Appeal,  on,  how  settled,  §  661. 
Appeal,  on,  must  contain  only  what,  §  661. 
Appeal  on,  service  on  adverse  party,   §   661. 
Appeal,  on,  time  for  proposing,  §  661. 
Appeal,  what  may  be  used  on,  §  950. 
Extension  of  time,   §  1054. 
Justice's  court,  appeal  from,  §  92. 
New    trial,    amendment,    time    to    prepare     and     serve, 

§  659. 
New  trial,  errors  of  law,  specification    of    particulars, 

§  659. 
New    trial,    insufhciency    of    evidence,    specification    of 

particulars,  §  659. 
New  trial,  judge  to  sign  and  certify,  §  659. 
New  trial,  notice  of  settlement,  §  659. 
New  trial,   power  of  judges  in  settling  and   certifying, 

§  653. 
New  trial,  how  prepared  where  granted  on  court's  own 

motion,  §  662. 
New  trial,  presentment  to  judge,  §  659. 
New  trial,  settlement  of,  §  059. 
New  trial,  tim.e  to  prepare  and  serve,  s  659. 
New  trial,  to  be  filed,  §  059. 
New  trial,  useless  and  redundant  matter  to  he  stricken 

out,  §   059. 
New  trial,  where  case  tried  by  referee,  §  659. 


1038  STATE    TREASURY— STATUTES. 

STATE  TREASURY,  deposit  in,  in  condemnation  proceed- 
ings, §  1254. 

STATUTE    OF     FRAUDS.     Agreement    for    sale    of    real 

estate,   §   1973. 
Authority    of    agent    to    sell   realty   must  be  written, 

§  1973. 
Building  contracts,   §   1183. 
Contracts  which  are  within,  §  1973. 
Lease  not  exceeding  one  year,   v/riting   not  necessary, 

§  1971. 
Leasing,  agreement  for  longer  than  a  year,  §  1973. 
Marriage,  agreement  of,  §  1973. 

Marriage,  agreement  upon  consideration  of,   §  1973. 
Mechanic's  lien,  what  contracts  must    be    in    writing, 

§   1183. 
Promise    of    executor    to    answer   out  of  own   estate, 

§  1612. 
Promises  to  answer  for  debt,  default  or  miscarriage  of 

another,  §  1973. 
Real  property,  writing  necessity  to  creation  of  interest 

in,  §§  1971,  1972. 
Representation  as  to  credit  of  third  person  to  be  writ- 
ten, §  1974. 
Sales  over  two  hundred  dollars,  §  1973. 
Specific  performance,  effect  of  statute,  §  1972. 

STATUTE  OF  LIMITATIONS:   See  Limitation  of  Actions. 

STATUTES:   See  Evidence. 

Authentication  of  foreign,  §  1901. 

Books  containing,  as  evidence,  §  1900. 

Code,  continuation  of,  §  5. 

Code  repeals  statutes  on  matters  covered  by,  §  18. 

Code,  consistent  with,  not  continued  in  force,  §     18. 

Code,  inconsistent  with,  repealed,  §  18. 

Code,  private  statute  not  repealed  by,  §  18. 

Code,  repeal  by,  does  not  revive  former  law,  §  18. 

Code,  retroactive,  is  not,  §  3. 

Constitution,  definition  of,  §  1897. 

Construction,  in  general,  §  1858. 

Construction  of,  for  court,  §  2102. 

Construction,   court  confined    to    terms    or    substance, 

§  1858. 
Construction,  duty  of  judge,   §   1858. 


STATUTES-STREAM,  lUW 

Construction,  effect  to  be  given  to  all  parts,  §  1858. 

Constructions,  two,  construed  in  favor  of  natural  right, 
§  18G6. 

Construction,  v/here  statute  capable  of  two  interpreta- 
tions, §  1866. 

Defined,  §§  1897,  1898. 

Intention  of  legislature  to  govern,   §  1859. 

Limitation  of  action  upon  statute  for  penalty  or  for- 
feiture, §  340. 

Not  continued  in  force  because  consistent  v,-ith  code, 
§  18. 

Not  expressly  continued  in  force  repealed,  §  18. 

Particular  intent  prevails  over  general,  §    18^9. 

Particular  provision  prevails  over  general,  §  1859. 

Pleading,  private,  §  459. 

Private,  not  repealed  by  code,  §  18. 

Public  and  private,  defined,   §  1898. 

Recitals  in,  effect  of,  §  1903. 

Repeal  by  code  does  not  revive  former  laws,  §  18. 

Repeal  of  does  not  revive  former  law,  §  18. 

Retroactive,  code  is  not,  §  3. 

Sales  at  auction,  memorandum  by  auctioneer,  §  1973. 

Section,  meaning  of,  §  17. 

What  are,  §  1897. 

Written  laws  of  state,  in  what  contained,  §  1897. 

STAY:   See  Appeals. 

Affidavits,  use  of  to  obtain  stay,  §  2009. 
Granting,  until  security  given  for  costs,  §  1036. 

STENOGRAPHERS,    §§    268-274.    See    Phonographic    Re- 
porters. 

STIPULATION    for   transfer   of   action    to   another   court, 
§  308. 
Of  attorney,   §   283. 

STOCK:   See  Corporations. 

Limitation  of  action  to  recover,  sold  for  delinquent  as- 
scssm.ent,  §  341. 

STOCKHOLDER,  limitation  of  action  against,  §  359. 

STREAM  as  boundary,  §  2077. 

Venue  of  action  for  offense  on  stream  situated  in  sev- 
eral counties,  §  393. 


low  STREETS— SUBSCRIPTION. 

STREETS.     Limitation   of   action   to   contest   assessment, 

§  349. 
Partition   proceedings  affecting,   §   764. 
Right    of    city    to  take  land  for,  not  affected  by  code, 

§  1263. 
See  Highways. 

STRIKING   OUT.     Disobedience  of  subpoenu  striking  out 
complaint  or  answer,  §  1991. 
Order  striking  out  pleading  deemed  excepted  to,  §  C47. 
Sham  answer,  §  453. 

SUBMITTING    CONTROVERSY    without  action,   §§   1138, 
1140. 
See  Arbitration. 

SUBPOENA,  contempt  for  disobeying,  §§  1991,  1209. 
Definition  of,  §  1985. 
Disobedience  to,  forfeiture  for,  §  1992. 
Disobedience  to,  how  punished,  §  1991. 
Disobedience,  striking  out  complaint  or  answer,  §  1991. 
For  what  issued,  §  1986. 
Issuance,  who  to  issue,  §  1986. 
Issued,  how,  §  1986. 
Justice   of  peace  may  issue  to    any    part    of    county, 

§  919. 
Justices'  clerk  may  issue,  §  87. 

May  require  production  of  books,  papers,  etc.,  §  19S5. 
Nonresidents,  service  on,  §  1015. 
Served,  how,  §  1987. 
Service  on  concealed  witness,  §  1988. 
What  is,  §  1985. 
Witnesses,  to,  deposition  to  be  used  in  another  state 

§§  2036,  2037. 
Witnesses,  §§  1985-1994.     See  Witnesses. 

SUBROGATION    by  judgment   debtor,   §   709. 
Of  surety  on  appeal  bond,  §  1059. 

Surety,    subrogation    of,    and    proceedings    to    obtain 
§  709. 

SUBSCRIBING  WITNESS,  opinion  of,  §  1870. 
See  Witness. 

SUBSCRIPTION  includes  mark,  §  17, 


SUGSTITUTION— SUMMONS.  IWl 

SUBSTITUTION  of  parties  to  action,  §§  385,  386. 

SUCCESSOR  in  interest,  substitution  of  as  party,  §  385. 
Wtiat  justices  of  peace  successors  of  others,  §§  98,  107, 

917. 
Who  to  designate  succeeding  justice,  §.918. 

SUMMONS:    See    Process;   Forcible    Entry    and    Unlawful 

Detainer. 
Affidavit  for  publication,  as  part  of  judgment-roll,  §  670. 
Alias,  when  will  issue,  §  408. 
Alias  from  justice's  court,  §g  846,  847. 
Appearance  equivalent  to  service,  §  416. 
Complaint  must  be  served  with,  §  410. 
Condemnation    proceedings    against    state    land,    sum- 
mons, how  served,  §  1240. 
Contains  what,  §  407. 
Defendants  residing  in   different  counties,  issuance  of 

summons,  §  406. 
Directed  how,  §  407. 

Dismissal  of  action  for  failure  to  issue  or  return,  §  581. 
Eminent  domain,  in,  §  1.245. 
Escheat  proceedings,  in,  §  1269. 

Execution  of  where  new  county  formed,  p.  780,  Stats. 
Failure  to  issue,  dismissal  of  action,  §  582. 
Failure  to  issue  or  return,  cured  by  appearance,  §  582. 
Failure   to   return,    dis.missal   of  action   for,    §   582. 
Fee   for    service  by   person   other  than   sheriff,   p.   762, 

Stats. 
Forcible  entry  and  detainer,  in,  §§  1166,  1167 
Interpreter,  to,  §  1884. 
Issuance,  time  of,  §§  406,  581. 
Issued  how,  §  407. 
Issued  under  seal,  §  407. 
Joint    contract,    service    where    one    or    more    appear, 

§  406. 
Joint  debtor,  after  judgment,  affidavit  for,  §  991. 
Joint  debtors  may  be  summoned  after  judgment,  §  989. 
Joint  debtors  not  summoned  in  original  action,  what 

to  contain,  §  990. 
Joint  debtors,  those  served  may  be  proceeded    against, 

§  414. 
Judgment-roll,  as  part  of,  §  670. 
Jurisdiction  of  action  acquired  when.  §  416. 
Justice's  court  in:   See  Justice's  Court,  VII. 
Justice's  court,  alias  summons  in,  §§  846,  847. 

Code  Civil  Proc. — 66 


1042  SUMMONS. 

Justice's   court,   from,    service   by    sheriff   and    deputy, 

§  87. 
Justice's  court,  to  be  served  out  of  county,  certificate 

to,  §  849. 
Justice's  court,  to  be  served  out  of  county,  publication 

of,  §  849. 
Justice's  court,  to  be  served  out  of  county,  service  and 

return,  §  849. 
Justice's  court,  who  may  sein^e,  §  849. 
Limitation  on  time  for  issuing,  §§  581,  582. 
Limitation  on  time  for  return,  §   581. 
Must  contain  what,  §  407. 
Partition,  in,  §  756. 
Police  court,  in,  §  930. 
Proof    of    service,    certificate    or    affidavit    must    state 

what,  §  415. 
Proof  of  service,  how  made,  §  415. 
Proof  of  service  by  admission  of  defendant,  §  415. 
Proof  of  service  in  case  of  publication,  §  415. 
Proof   of   service    made   by   person   other   than   sheriff, 

§  415. 
Proof  of  service  made  by  sheriff,  §  415. 
Publication,  affidavit,  §§  412,  750. 
Publication,  concealed  defendant,  §  412. 
Publication,    depositing    summons     and     complaint     in 

postoffice,  §  413. 
Publication,  foreign  corporation  having  no  agent,  etc., 

§§  412,  413. 
Publication,  in  suit  to  determine  adverse  claim,  §§  749, 

750. 
Publication  in  suit  to  determine  adverse  claim  against 

unknown  owners,  §  750. 
Publication,  judgment-roll,  §  670. 
Publication,  manner  of,  §  413. 
Publication,  nonresident,  §§  412,  413. 
Publication,  procedure,  §  412. 
Publication,  time  and  frequency  of,  §  413. 
Publication,  when  and  hov/  marie,  §  412. 
Publication,  when  complete,  §  413. 
Publication  of,  default  for  failure  to  answer,  procedure 

§  585. 
Relief  from  judgment  when  no  personal  service,  §  473. 
Return  by  person  other  than  sheriff,  §  410. 
Return  by  sheriff,  manner  of,   §  410. 
Return,  limitation  of  time  for,  §§  581,  582. 
Return  of,  time  of  in  forcible  entry,  §  IIGG. 
Returned,  how,  §  410. 


SUMMONS— SUPERIOR   COURT.  IM 

Served,  how,  §§  410,  411. 

Service,  personal,  when  necessary,  §  411. 

Service  by  person  other  than  sheriff,  §  410. 

Service  by  publication,  in  partition  suit,  §  757. 

Service  by  sheriff,  manner  of,  §  410. 

Service  in  action  against  vessels,  §  816. 

Service  on  county,  city,  or  town,  §  411. 

Service  on   domestic   corporation,   §   411. 

Service  on  foreign  corporation,  §  411. 

Service  on  guardian,  §  411. 

Service  on  guardian  of  infant  or  lunatic,  §  1722. 

Service  on  infant  under  fourteen,  §  411. 

Service  on  insane  person,  §  411. 

S;ervice  on  part  of  defendants,  procedure  after,  §  414. 

Service  may  be  proved  by  affidavit,  §  2009. 

Service,  v.here  parties  associated  in  business,  §  388. 

Service  where  parties  transact  business  under  common 

name,  §  388. 
Signed  by  clerk,  §  407. 

Waiver  of,  by  appearing  and  pleading,  §  406. 
Waiver  of,  in  writing,  §  40G. 
When  may  be  issued,  §  406. 

SUNDAYS  are  holidays,  §   10. 

Holiday  falling  on  Sunday,  next  day  celebrated,  §§  10, 

11. 
See  Holidays. 

SUPERINTENDENT  of  railroad    exempt    from    jury  duty, 
§  200. 

SUPERIOR  COURT:   See  Court;   Probate  Court;   Superior 

Judge. 
Act  transferring  ref:oi"xls  of  other  courts  to,  p.  782. 
Adjournments  construed  as  recesses  and  not  to  prevent 

sitting,  §  74. 
Always  open,  §  73. 
Appeal  to,  §§  974-980.     See  Appeal. 
Apportionment  of  business  where  more  than  one  judge, 

§§  C6,  67. 
Certifying  cases  to,  from  justice's  court,  §  92. 
Certified  copy  of  list  of  jurors  to  be  filed  with  clerk  of. 

§  208. 
Costs  on  review,  other  than  by  appeal,  §  1032. 
Docketing  judgment  of  justice's  court,  §  898. 
Docketin-g  judgment  of  justice's  court,  execution,  §  899. 
Holding  court  by  one  judge  for  another  at  governors 

request,  §  160. 


104'4  SUPERIOR     COURT— STJPKRIOR     JUDGE. 

Incidental  powers  and  duties,  §§  128-130. 

Jurisdiction  is  original  and  appellate,  §  75. 

Juris'diction,  appellate,  has,  in  what  cases,  §  77. 

Jurisdiction,  original,  has  in  what  cases,  §  76. 

Jurisdiction,  concurrent  with  justices'  courts,  §  113. 

Jurisdiction  in  eminent  domain,  §  1243. 

Jurisdiction  to  change  name,  §  1275. 

Justices  ot"  peace,  shall  designate  which  of  two,  is  suc- 
cessor, wheu,  §  918. 

May  vacate  its  judgment,  in  what  cases,  §  C63. 

Phonographic  reporter  for,  §§  2G8-274.  See  Phono- 
gi-aphic  Reporter. 

Powers  of,  on  appeal,  §  980. 

Powers  of  district,  county  and  probate  courts  conferred 
on,  p.  764,  Stats. 

Process  extends  to  ail  parts  of  state,  §  78. 

Record,  superior  courts  are  courts  of,  §  34, 

Remitting  judgment  to,  §  56. 

Rooms  for,  how  provided  and  furnished,  §  144. 

Rules,  power  to  make,  §  129 

Rules,  when  take  effect,  §§  129,  130. 

San  Francisco:   See  San  Francisco. 

Secretary  of,  in  certain  counties,  p.  764,  Stats. 

Seal,  has,   §  147. 

Seal  of,  §  149. 

Sessions  held  at  county  seats,  §  73. 

Sessions,  number  of  in  counties  having  two  or  more 
jud'ges,  §§  GG,  67. 

Sessions,  regular,  when  held,  §  73. 

Sessions,  special,  when  held,  §  73. 

Session  of,  by  judge  of  another  court,  §  160. 

Transfer  of  action  to  another  court,  manner  of,  §§  398. 
399. 

Transfer  to,  from  justice's  court,  jurisdiction,  §   838. 

Transfer  to,  from  justice's  court,  when  and  how  ef- 
fected,  §   838. 

Transfer  of  books,  records,  and  actions  to  superior 
court.    §   79. 

Vacation  of  judgment,  grounds  for,  §  663. 

Writs,  power  of  to  issue,  §  76. 

SUPERIOR  JUDGE:    See  Superior  Court. 

Absence  of,  authority  of  court  commissioner,  §  259. 
Absence,  illness,   or   disability,   appointment   of   substi- 
tute, §  160. 
Acknowledgment,  may  take,  §  179. 
Affidavit,  may  take,  §   179. 
Attorney  may  be  selected  to  act  as,  §  72. 


SUPERIOR     JUDGE— SUPERVISORS.  IMt 

Chambers,  at,  powers  of,  §  166. 

Change  of,  for  bias,  etc.,  procedure,  §  170. 

Computation   of  term,    §   69. 

Decedent's  estate,  may  present  claim  against,  §  1495. 

Decedent's   estate,   proceedings   where   claim   presented 

by,  §   1495. 
Deposition,  may  take,  §  179. 

Disqualification  of,  what  matters  amount  to,  §  170. 
Disqualified,  transfer  of  cause  to  another,  §  398. 
Eligibility,  §  157. 
Expenses    of,   incurred   in    holding  court  for   another. 

§  IGO. 
Guardianship  matters,  powers  of,  at  chambers,  in,  §  1G6. 
Holding  court  In  another  county,  power  of,  §  71. 
Holding  court  for  another  at  request  of  governor,  §  160. 
Ineligible  to    any    other    office    or    public    employment, 

§  161. 
Jurors,  designating  the  estimated  number  of,  §  204. 
Jurors,  selection  of,  §  204. 

May  hold  court  In  another  county,  when,  §  71. 
May  take  acknowledgment,   affidavit,  deposition,   §   179. 
Not  to  have  law  partner,  §  172. 
Number  of  in  particular  counties,  acts  relating  to,  pp. 

765,  766. 
Number  of  judges,  §§  65,  66,  67. 
Order  of,  directing  jury  to  be  drawn,  §  214. 
Order  of,  to  impanel  grand  jury,  §  241. 
Powers  out  of  court,  §§  176,  1305. 
Probate:   See  Probate   Court. 

Probate  matters,  power  of,  at  chambers,  in,  §  166. 
Probation  officer.     See   Probation   Officers. 
Residence,  place  of,  §  158. 
Secretary  of  in  certain  counties,  p.  764,  Stats. 
Sickness,  absence  or  disability,  requesting  some  other 

judge  to  sit,  §  160. 
Successor  to  justice,  superior  judge  when  to  designate, 

§  918. 
Term  of  office,  §  68. 

Vacancy  In,    appointee    holds   until    next    general    elec- 
tion, §  70. 
Vacancy  In  office,  governor  to  fill,  §  70. 
Vacancy  in,  one  elected  to  fill  holds  for  remainder  or 

unexpired  term,  §  70. 
Writs,  power  of,  to  Issue,  §  76. 

SUPERVISORS.     Selection  of  jurors,  §§  204,  205. 

Vacancy  In  office  of  justice,  supervisors  to  fill,  §  111. 


»I6  SUPPLEMENTAI^SUPREME     COTTRT. 

SUPPLEMENTAL  complaint  in  partition,  §  761. 
Complaint  and  answer,  wlien  allowed,  §  404. 
Pleadings  to  bring  in  necessary  parties,  §  389. 
Pleadings  to  revive  judgment,  §    685. 

SUPPLEMENTARY     PROCEEDINGS,     arrest    of     debtor, 

§  715. 
Commitment  of  debtor,  §  715. 
Contempt  for  disobeying  orders  in,  §  721. 
Debtor   must    answer    concerning    property,    to    whom, 

§  714. 
Debtor  must  answer  concerning  property,  when,  §  714. 
Debtor  need  not  answer  outside  of  county,  §  714. 
Disobeying  orders  in,  punishment,  §  721. 
Examination  of  debtor  of  judgment  debtor,  §  717. 
In  justice's  court,  §  905. 

Ordering  property  applied  on  execution,   §  719. 
Proceedings  against  third  person  asserting  claim,  §  720. 
Proceedings  to  compel  debtor  to  appear,  §  715. 
Proceedings  upon  assertion  of  claim   by  third   person, 

§  720. 
Undertaking  of  debtor,  §  715. 
Witnesses,  §  718. 

SUPREME  COURT:   See  Supreme  Court  Justice. 

Act  transferring  records  of  old  supreme  court  to,  p.  782. 

Adjournments  do  not  prevent  sittings,  §  48. 

Appeal  from  judgment,  may  take  what  action  on,  §  956. 

Appellate  jurisdiction  of,  §  52. 

Attorneys,  removal  or  suspension  of,  §  287. 

Attorneys  of,  who  are,  §  275. 

Bailiffs,  appointment  and  tenure  of  office,  §  2GG. 

Bailiffs,  duties  of,  §  2GG. 

Baillffs.number  and  qualification  of,  §  2G5. 

Bill  of  exceptions,  application  to,  for  proving,  §  652. 

Clerk  of,  §  262. 

Concurrence  of  three  justices  necessary  to  transaction 

of  business,  §  54. 
Consists  of  what,   §  40. 

Court  in  bank,  chief  justice  to  preside,  §  45. 
Court  In  l)ank,  convening.   §  45. 
Court  In  bank,  judgment,  concurrence  of  four  justices 

necessary,    §    45. 
Court  in  bank,   judgment,   finality  of,   §   45. 
Court  in  bank,  judement,  rehearing,  §  45. 
Court  In  bank,  ordering  case  to  be  heard  by,  §  44. 
Court   In   bank,    presence    of     four    justices    necessary, 

§  45. 


SUPREME    COURT.  1041 

Decision,  all  questions  to  be  passed  upon,  §  53. 

Decisions  to  be  written  and  reasons  staled,  §§  49,  53. 

Departments,  assignment  of  judges  to,  §  43. 

Department,  chief  may  sit  in  either,  §  4'i. 

Department,  disagreement  of  judges,  transmitting  case 
to  other  department  or  to  court  in  banlc,  g  43. 

Department,  Interchanges  between  judges,  §  43. 

Departments,    judgment,    concurrence    of    three    Judges 
necessary,  §  43. 

Departments,  judgment,  rehearing,  §  44. 

Departments,  number  of,  §  43. 

Departments,  one  or  more  justices  may  adjourn,  §  43. 

Departments,  pov.'ers  of  in  hearing  causes,  §  43. 

Department,  rehearing  case  where  three  judges  do  not 
concur,  §  43. 

Departments,  three  justices  necessary  to  transact  busi- 
ness,  §   43. 

Election  contest,  preference  given,  §  57. 

Expense  of  rooms,  etc.,  how  defrayed,  §  47. 

Incidental  powers.   §§   128-130. 

Judgment,  may  affirm,  reverse  or  modify,  §  53. 

Judgment,  powers  of  supreme  court  in  relation  to,  §  53. 

Judgment,  to  be  remitted,  §  53. 

Judgment,  when  becomes  final,  §  44. 

Jurisdiction,  appellate,   §  52. 

Jurisdiction   is  original  and  appellate,  §  50. 

Officers  of,  traveling  expenses,  §  47. 

Open  always,  §  47. 

Ordering  case  to  be  heard  in  bank,  §  44. 

Phonographic  reporter,  provided  for  in  Political  Code, 

§  2C8. 
Probate  appeals,  preference  given,  §  57. 
Record,  supreme  court  is  court  of,  §  34. 
Rehearing,  §   44. 
Remedial  powers  of,  §  53. 
Remittitur,  §§  53,  5G. 
Reporter,  d'ltles  and  powers  of,  prescribed  by  Political 

and  Penal  Codes,  §  2G2. 
Rooms,  furniture,  etc.,  how  jirovided  for,  §  47, 
Rules  of,  when  take  effect,  §  130. 
Rules,  power  to  make,  §  129. 
Seal,  has,  §   147. 
Seal  of.  §  148. 
Seal  of,  duplicates,  §  im. 
Secretaries,   appointment  and   tenure  of  office,   55   265, 

266. 
Secretaries,  duties  of,  §  2G6. 
Secretaries,  number  and  qualification  of,  5  265. 


048  SUPREME   COURT-SUPREME    COURT   JUSTICE. 

Sessions,   §   47. 

Terms,  §  47. 

Transfer  of  records,  actions  and  proceedings,  §  55, 

Traveling  expenses  of  justices,   §  47. 

Vacancy,  election   to  fill,    §   42. 

Vacancy  in,  appointee  to  hold  until  next  general  elec- 
tion, §  42. 

Vacancy  in,  governor  to  fill,  §  42. 

When  and  w^here  held.  §  47. 

Writ  of  habeas  corpus,  any  judge  may  issue,  §  54. 
Writs,  concurrence  of  three  judges  necessary  to  issu- 
ance, §  54. 
Writs,  what,  may  issue,  §  51. 

SUPREME    COURT    COMMISSION,    creation    of,    p.  763. 

Stats. 

SUPREME  COURT  JUSTICE,    attorneys,    examination    of 
candidates  for  admission  as,  §  276. 
Bill  of  exceptions,  settlement  by,  §  C52. 
Bill  of  exceptions,  power  of,  respecting  settlement  of, 

§  653. 
Chambers,  powers  at,  §  165. 

Chief  justice,  absence  or  inability  of,  selection  of  sub- 
stitute,  §  45. 
Chief  justice,  eligibility,  §  156. 
Chief  justice  to  apportion  business,  §  44. 
Classification   of   for  purpose   of   determining  term   of 

office,  §  40. 
Computation  of  term  of  office,  §  41. 
Disqualification  of,  what  matters  amount  to,  §  170. 
Disqualification,  waiver  of,  §  170. 
Election  of  judges,  §  40. 
Eligibility,  §  156. 
Ineligible   to   any   other   office   or   public   employment, 

§  161. 
May  take  acknowledgment,  affidavit,  deposition,  §  179. 
Not  to  have  law  partner,  §  172. 
Remedial  powers  of,   §  957. 
Term  of  office,  §  40. 


SUPREME    COURT    JUSTICE— SURETY.  WW 

Traveling  expenses,  §  47, 
See  Supreme  Court. 

SURETY:   See  Bonds;  Undertakings. 

Action  to  compel  satisfaction  of  debt  for  which  surety 
bound,  §  1050. 

Administrator's  bond,  on,  release  of,  §§  1403,  1404. 

Attachment,  in,  exception  to,  §  539. 

Attachment,  in,  justification  of,  §  539. 

Citation  to  sureties  on  administrator's  bond,  §  1394. 

Contractor's  bond,  on,  §  1203. 

Contribution,  §  709. 

Corporation  as,  §§  1056,  1057. 

Corporation   as,   jurisdiction   and   powers   of   insurance 

commissioners  over,  §  1056. 
Corporation   accepted   as   sole   surety,   when   and   when 

not,  pp.  762,  763,  Stats. 

Corporation  as,  duty  of  insurance  commissioner   p   763 

Stats. 
Exception  to,  in  attachment  in  justice's  court,  §  867. 
Exception  to,  on  attachment  of  vessel,  §  821. 
Exception  to,  on  appeal  bond  to  superior  court,  §  978. 
Injunction,  upon,  exception  to,  §  529. 
Joinder  of.  In  action  on  negotiable  instrument,  §  383. 
Judgment    against    officer     conclusive     against      when 

§  1055. 

Judgment,  entry  of,  against,  on  five  days'  notice,  §  1055. 

Justification  of,  extension  of  time  for,  §  1054. 

Justification  of,  in  attachment,  §§  554,  555. 

Justification  of,  on  administrator's  bond,  §  1393. 

Justification  of,  on  appeal,  §  948. 

Justification  of,  on  attachment  of  vessel,  §  821. 

Justification  of,  on  appeal  bond  to  superior  court,  §  978. 

Justification  of,  in  justice's  court,  §  92. 

Liability  of,  on  undertaking  to  stay  money  judgment 

§  942. 
New    security,     application    for,     from    administrator 

§§  1398-1402. 

Objection  to,  waiver  of  by  failure  to  except,  §  529. 
Paying  ju'dgment,   compelling   repayment,   §   709. 


UeO  SURETY— TAX  COLLECTOR. 

Principal  bound  when  surety  is,  §  1912. 

Principal,  from  what  time  bound,  §  1912. 

Referee,  surety  cannot  be,  §  641. 

Replevin,  in,  exception  to,   §  513. 

Replevin,  in,  justification  of,  §  515. 

Replevin,   bond,  on,  when  not    bound    by  affidavit  of 

value,  §  473. 
Subrogation,  right  of  and  proceedings  to  obtain,  §  709. 
Subrogation,  appeal  bond,  §  1059. 
Waiver  of  objection  by  failure  to  make,  §  513. 
When  bound,  principal  is  also,  §  1912. 

SURPRISE,  amendment  on  ground  of,  §  473. 

As  ground  for  relief  from  default  judgment  in  justice's 

court,  §  859. 
New  trial  on  ground  of,  §  657. 

SURVEY.     Land  taken  from  public  use,  §  1242. 
Order  to  allow,  in  action  of  ejectment,  §  742. 

SURVIVAL  of  action,  §§  1582-1584. 

Action    not    abated    by    death,    disability    or    transfer, 

when,  §  385. 
Death,  effect  on  limitations,  §§  353,  355. 

SURVIVORSHIP,  presumption  as  to,  §   1963. 

SUTTER  COUNTY.    One  superior    judge    for    Sutter  and 
Yuba  counties,  §  65. 
Separate  judges  for  Sutter  and  Yuba  counties,  act  pro- 
viding for,  p.  766,  Stats. 

TAX,  adverse  possession,  payment  of  taxes,  necessary  to, 
§  325. 
Claim  and  delivery,  §  510. 
Costs  of  course,  in  action  involving,  §  1022. 
Distribution  of  decedent's  estate,  must  be  paid  before, 

§  1669. 
Limitation  of  action  against  tax  collector,  §  341. 
Redemption  must  pay  what,  §§  702,  703. 

TAX  COLLECTOR,  limitation  of  action  against,  for  seizure 
of  goods,  §  341. 


TEACHER— TIME.  Ifl&J 

TEACHER  exempt  from  jury  duty,  §  200. 

TEAMSTER,  property  of  exempt  from  execution,  S  690. 

TELEGRAPH  company,  eminent  domain,  §  1238. 

Line,  employee  of,  exempt  from  jury  duty,  §  200, 
Seal,  how  described  by  telegraph,  §  1017. 
Service  by  telegraph,  §  1017. 

TENANT:   See  Forcible    Entry    and    Unlawful   Detainer; 
Landlord  and  Tenant. 

TENANCY  AT  WILL,  to  be  terminated  by  notice,  §  1161. 

TENANT  FOR  YEARS,  waste,  liability  for,  §  732. 

TENANT  IN  COMMON.    Any  number  may  sue  or  defend 

for  all,  §§  381,  384. 
PartJes  in  suits  concerning,  §§  381,  384. 
Partition,  §§  752-801.     See  Partition. 
Waste,  liability  for,  §  732. 

TENDER  before  suit  alTects  costs  how,  §  1030. 
Keeping  good,  §  1030. 
Objection  to,  must  be  specified,  §  2076. 
Offer  in  writing  equivalent  to,  §  2074. 
Payment,  tender  is  equivalent  to,  §  704. 

TENSE  of  words  in  code,  §  17. 

TENURE  OF  OFFICE:   See  Office. 

TERRITORY  included  under  state  and  United  States,  §  17. 
Public  writings  of,  effect  of  and  how  proved,  §  1924. 

TESTIFY,  includes  what,  §   17. 

TIMBER,  damages  for  cutting,  §§  733,  734. 

TIME.     Accounting  by  executor,  time  for,  §  1622. 
Action  commenced  when,  §  350. 

Administration,  letters  of,  time  for  granting,  §  1372. 
Administration,  notice  of  hearing  of  petition  for  letters 
of,  time  of,  §  1373. 


1059 


Administration,  petition  for  letters  of,  witliin  what  time 

to  be  made,  §  1301. 
Answer,  time  for,  §  407. 
Answer,  extension  of  time  for,  §  473. 
Appeal,  exception  to  sureties  on,  §  948. 
Appeal,  justification  of  sureties  on  appeal,  §  948. 
Appeal    from   judgment    in    proceedings   to     determine 

heirship,  time  for,  §  1664. 

Appeal   to   superior   court,   statement  on,   time   to  file, 

§  975. 
Appeal   to   superior  court,   statement  on,   amendments, 

time  to  file,  §  975. 
Appraisement,  time  to  return,  §§  1443.  1451. 
Attachment  of  vessel,  §  817. 
Attachment,  time  of  issuance,  §  537. 
Attachment,  time  of  return  of,  §  559. 
Bill  of  exceptions,  preparation  and  settlement,  §  650. 
Bill  of  exceptions,  time  for  settlement,  §  659. 
Building,  notice  of  acceptance  of,  time  to  file,  §  1187. 
Citations  to  be  served  five  days  before  return,  §  1711. 
Citation  to  show  cause  why  additional  security  should 

not  be  given,  time  to  serve,  §  1398. 
Claim,  action  on  rejected,  against  estate  of  decedent, 

when  to  be  brought,  §  1498. 
Claim   against   estate,   allowance  or  rejection  of,  time 

for,  §   1496. 
Claims  against  estate,  time  to  present,  §§  1491,  1493. 
Claim,  filing  of  approved,  time  for,  §  1497. 
Claim  of  mariner  or  seaman,  time  to  contest,  §  826. 
Code  takes  effect  when,  §  2. 

Complaint  to  adjudge  heirship,  time  to  answer,  §  1664. 
Computation  of,  §  12. 

Computation  of,  when  service  by  mail,   §  1013. 
Computation  of  term  of  office  of  supreme  judge,  §  41. 
Condemnation  proceedings,  damages  at  what  time  as- 
sessed,  §   1249. 
Condemnation  proceedings,  time  for  payment,  §§  1249, 

1251. 
Continuance  in  justice's  court,  length  of,  |  876. 


Corporation,   notice  of  application  for    dissolution    of, 

time  of,  §  1230. 
Costs,  motion  to  tax,  time  for,  §  1033. 
Court  commissioner,  report  of,  time  to  make,  §  729. 
Decision,  time  for,  §  632. 

Default,   relief  from   in  justice's   court,   time  to   apply 

for,  §  859. 
Demurrer,    sustaining   or   overruling,    time    to    amend, 

§  476. 
Demurrer  to  answer,  time  for,  §  443. 
Deposition,  time  of  notice  of  taking,  §  2031. 
Deposition,  time  of  taking,  §  2020. 
Distribution  and  partition  of  decedent's  estate,  petition 

and  notice,  time  for,  §  1676. 
Distribution  and  partition  of  estate,  proceedings,  wlien 

may  be  instituted,  §  1676. 
Election  contest,  time  of  trial  of,  §  1118. 
Election  contest,  time  to  file,  §  1115. 
Entries  in  justice's  docket,  time  of  making,  §  912. 
Entry    of    judgment,    time    for,   and   dismissal,   §    581, 

subd.  6. 
Escheat  proceedings,  time  to  appear,  §  1269. 
Estate   of   decedent,   extension  of   time  for  settlement, 

§  1651. 
Exception,  time  of  taking,  §  646. 
Exception    to    sureties    on    injunction    bond,    time    for, 

§  529. 
Execution,  return  of,  time  for,  §  683. 
Execution,  time  within  which  to  issue,  §  681. 
Executor,  account  of  sale  by,  time  to  return,  §  1575. 
Executor    or    administrator,    account    by,  time  to  file, 

§§  1622,  1628. 
Executors,  private  sale  by,  time  of,  §  1549. 
Executor,  return  of  sales  by,  §  1575. 
Extension  of,  generally,  §  1054. 
Foreclosure,    report    of    commissioner  in,  time  to  file, 

§   729. 
Guardian's  account,  time  to  file,  §  1774. 


TIME. 

GuLirdian,   notice   of    removal    of   propertj'    by    nonresi- 
dent, §  179S. 
Guardian  of  lunatic,  notice  of  hearing  of  appointment 

of,  §  17G3. 
Guardian's  sale,  service  of  order,  §  1783. 
Indorsement,  presumption  as  to  time  of  making,  §  1963. 
Inventory,  time  to  return,  §§  1443,  1450,  1451. 
Judgment  on  verdict,  time  to  enter,  §  G64. 
Judgment,  relief  from,  time  to  move  for,  §  473. 
Judgment,  time  of  entry  of,  §  664. 
Judgment,  vacation  of,  §   663^/^. 

Justice's  court,  answer  or  demurrer  to  amended  plead- 
ing in,  time  for,  §  860. 
Justice's  court,  demurrer  to  answer  in,  time  for,  §  857. 
Justice's  courts,  demurrer  to  complaint  in,    time    for, 

§  854. 
Justice's  court,  judgment  in,  to  be  entered  at  close  of 

trial,  §  892. 
Justice's  court,  judgment  upon  verdict  in,  to  be  entered 

at  once,  §  891. 
Justice's  court,  summons  in  to  issue  within  one  year, 

§  840. 
Lease,  forfeiture  of,  time  to  apply  for  release  against, 

§  1179. 
Legacy  or  devise,  petition  for  payme^it,  when  may  be 

filed,  §  1658. 
Limitation   on,   for    issuing    and    returning    summons, 

§  581. 
Mandamus,  notice  of  application  for  writ  of,  §   10S8. 
Mechanics'  lien,  time  of  continuance,  §  1190. 
Mechanics'  lien,  claim  of,  time  of  recording,  §  1187. 
"Month"  means  calendar  month,  §  17. 
New  trial,  hearing  of  motion  for,  §   660. 
Notice  of  application  for  discharge  from  prison,  §  1145. 
Notice  of  hearing,  §  594. 
Notice  of  intention  to  move  for  new  trial,  time  to  file, 

§  659. 
Notice  of  motion,  time  of  service,  §  1005. 
Notice  of,  to  appear  on  petition  for  final  distribution, 

§  1664. 
Preferred  claim  of  servant,  time  to  dispute,  §  1207. 
Public  administrator,  accounting  by,  §  1739. 
Public   administrator,   return   of    condition    of    estates 

by,  §  1736. 
Redemption,  §§  702,    703. 


TIME— TITLE.  1055 

Rehearing,  §§  44,  45. 

Relief  against  default  in  justice  court,  application  for, 
§  859. 

Report  of  referee  or  court  commissioner,  time  to  make, 
§  643. 

Rules  of  supreme  court  take  effect  when,  §  130. 

Sole  trader,  petition  to  become,  time  to  file,  §  1813. 

Statement  on  motion  for  new  trial,  time  for  prepara- 
tion, amendment  and  settlement,  §  659. 

Statement,  service,  amendment  and  settlement,  time 
for,  §  661. 

Summons,  alias,  in  justice's  court,  time  for  issuance, 
§  847. 

Summons  in  civil  action  in  police  court,  time  of  issu- 
ing, §  930. 

Summons,  time  for  issuance  of,  §  406. 

Summons,  time  to  issue  in  suit  to  quiet  title,  §  750. 

Summons  in  forcible  entry,  return  of,  §  1166. 

Summons,  when  to  be  issued  and  returned,  §  581, 
subd.  7. 

Surrender  by  bail  of  arrested  defendant,  time  for, 
§§  488,   489. 

Will,  contest  of,  after  probate,  §   1327. 

Will,  contest  of  probate,  time  for,  §  1333. 

Will,  custodian  of,  within  what  time  to  produce.  §  1298. 

Will,  hearing  of  petition  for  probate,  §  1303. 

Will,  notice  of  time  appointed  for  petition  for  probate 
of,  §  1304. 

Will,  nuncupative,  time  for  probate  of,  §§  1344,  1345. 

Within  which  an  act  is  to  be  done,  may  be  extended, 
§  1054. 

Within  which  summons  may  issue  on  complaint,  §  406. 

TITLE,  abstract  of  in  partition,  §§  799,  800. 

Action     involving,    to    real    estate,    costs    allowed    of 

course,  when,   §   1022. 
Adverse  claim,  action  to  determine,  §  1050. 
Code,  title  of,  §  1. 
Complaint  to  contain,  §  426. 
Cotenants  may  unite  in  suit  relating  to,  §  381. 
Declarations  or  admissions  of  predecessor,  admissible 

§  1849. 
Defective  title  or  want  of  title  on  papers,  §  1046. 
Issue   of,   evidence   of   continued   possession   of   remote 

occupant,  §  1834. 


W56  TITLE— TRESPASS. 

Parties  defendant  in  actions  involving,  §  379. 
Quieting,   §§   738-751.     See  Quieting  Title. 

TOLL,  costs  of  course  in  action  involving,  §  1022. 

TOLL-GATE,  keeper  of,  exempt  from  jury  duty,  §  200. 

TORTS,  definition  of  Injury  to  person,  §  29. 
Definition  of  injury  to  property,  §  28. 
Joinder  of  actions  for,  §  427. 
Kinds  of,  §  27. 

TOWN,  mechanics'  liens  on  town  lots,  §  1191. 

Partition  of  property  Included  in  towusite,  §  763. 
Service  of  summons  on,  §  411. 

TOWNSHIP,  change  In  boundary,   succession  of  justices, 
§  107. 

TRANSCRIPT,    compensation    of    reporter,    §    274 
Justice's  court,  §  92. 
Of  docket  filed   in  another  county,  judgment  becomes 

lien  there,  §  674. 
Of   entries    in   justice's    docket,    prima   facie    evidence, 

§  912. 
On  transfer  of  cause  from  justice's  to  superior  court, 

§  838. 
Reference  to,  on  hearing  of  motion  for  new  trial,  §  660. 

TRANSFER  of  action  to  another  court,  manner  of,  §  399. 
Of  action  to  another  court,  when  proper,  §  397. 
See  Place  of  Trial. 

TRANSFERRED  CASE,  remittitur,  §   56. 

TREASON,  number  of  witnesses  to  prove,  §  1844. 
Proof  necessary,  §  1968. 

TREASURER:    See  Public  Administrator. 

Deposit  with,  §§  573,  2104.     See  Deposit  in  Court. 
Estate    of    decedent    distributed     to,     in     what    cases, 

§  1703  Va. 
State,     deposit     with     in      condemnation      proceedings, 

§  1254. 

TRESPASS,    decedent,   of,    action    for    against    executor, 
§  1584. 


TRESPASS— TRI A  U  WJI 

Executor,  action  for,  by,  §  15S3. 
Justice's  court,  action  for,  in,  §  112. 
Land,  on,  limitation  of  action  for,  §  3oS. 
Personalty,  to,  limitation  of  action  for,  §  338. 
Timber  cutting,  §§  733,  734. 

TRIAL:   See  Instructions. 

Absence  of  party,  bringing  issue  to  trial  in,  §  594. 

Adjournment:    See   Adjournment. 

Agreed  case,  §§  1138-1140. 

Argument,  case  may  be  brought  before  court  for,  when, 

§  GG5. 
Argument,  order  of,  §  607. 

Argument,  submission  of  case  without,  §  G07. 
Argument,  reserving  case  for,  §§  CC4,  6G5. 
Argument,    case    reserved    for,    bringing    before    court, 

§  6G5. 
Calendar,  causes  must  be  entered  on,  §  593. 
Calendar,  causes  must  remain  on,  till  when,  §  593. 
Calendar,  dropping  cause  from,  §  593. 
Calendar,  restoring  cause  to,  §  593. 
Challenge  of  jurors,  §§  G01-G03.     See  Jurors. 
Change    of,    where    county    designated    is    not    proper 

county  §  397. 
Changing  place  of,  for  convenience  of  witnesses,  §  397. 
Changing  place  of,  for  disability  of  judge,  §  397. 
Changing  place  of,  for  impartial  jury,  §  397. 
Changing  place  of,  grounds  for,  §  397. 
Clerk  must  keep  register  of  actions,  §  1052. 
Clerk  to  take  testimony,  when,  §  1051. 
Compromise,  offer  of,  how  made  and  its  effect,  §  997. 
Conduct  of,   §§   G07-619. 
Conduct  of,  powers  of  judge,  §§  177,  178. 
Contempt,  interference  with  is,  §  1209. 
Contempt,  §§  1209-1222.     See  Contempt 
Continuance,  costs  on,  §  1029. 
Continuance:   See  Continuance. 
Court,  by,  §  G31. 

Deposit  in  court.  §§  573,  2104.     See  Deposit  in  Court. 
Decision  of  court,  facts  found  and  conclusions  of  law 

must  be  stated  separately,  §  G33. 
Decision  of  court  on  question  of  fact,  filing,  time  for. 

§   632. 
Decision  of  court  on  question  of  fact  must  be  written, 

§   632. 
Error    disregarded    unless    substantial    rights    affected, 

§  475. 
Code   CivU   Proc.— €7 


TRIAL. 

Evidence:  See  Evidence. 

Exceptions,   §§   646-653.     See  Exceptions. 

Findings  of  fact  and  conclusions  of  law  must  be  stated 
separately,  §  633. 

Findings  of  fact  may  be  waived  how,  §  634. 

Hearing,  either  party  may  bring  issue  to,  §  594. 

Hearing  in  absence  of  party,  §  594. 

Hearing,  notice  of,  §  594. 

Instructions:    See  Instructions. 

Interpreter,  when  to  be  summoned  and  sworn,  §  1884. 

Issue,  §§  588-596.     See  Issue. 

Issues,  by  whom  triable,  §§  309,  591,  592. 

Issue  of  law,  proceedings  after  determination  of,  §  636. 

Joint  debtor,  proceedings  against,  when  not  summoned 
in  original  action,  §§  989-994. 

Judgment  on  demurrer,  proceedings  after,  §  636. 

Judge,  powers  of  In  conduct  of  proceedings,  §  177. 

Jury,  admonition  to,  on  separation,  §  611. 

Jury,  deliberation  of  how  conducted,  §  613. 

Jury,  deliberation  of,  what  papers,  etc.,  may  an-d  may 
not  take  with  them,  §  612. 

Jury,   discharge  of  before  verdict,  retrial,  §  616. 

Jury,  how  and  when  waived,  §  631. 

Jury,  in  forcible  entry  and  detainer,  §  1171. 

Jury,  in  mandamus  proceedings,  §  1090. 

Jury,  polling,   §  618. 

Justlce'.s  court,  in:    See  Justice's  Court,  XIV. 

New,  §§  656-6631/2.     See  New  Trial. 

Notice  of  hearing,  §  594. 

Order  of  proceeding,  §  607. 

Order  of  proof,  in  general,  §  2042. 

Place  of:    See  Justice's  Court,  XII. 

Place  of,  §§  392-400.     See  Place  of  Trial. 

Police  court,  in,  §§  929-933.     See  Police  Court. 

Powers  of  judge  in  conduct  of  proceedings,  §  177. 

Presumption  that  all  matters  within  issues  were  passed 
upon,  §  1963. 

Private,  in  what  ca^es  may  be  had,  §  125. 

Questions  of  fact,  when  for  Jury,  §  2101. 

Questions  of  law  addressed  to  court,  §  2102. 

Questions    of    law    and    fact,    §§    2101-2103.     See    Ques- 
tions of  Law  and  Fact. 
Referee's  findings   must  state  conclusions  of  law  and 
fact  separately,  §  643. 

Reference,  §§  G3S-645.     See  Reference. 

Sick  Juror,  proceedings  in  case  of,  §  615. 

Sittings  to  be  public,  §  124. 


TRIAL— TRUSTEE.  1059 

Sittings,  when  may  be  private,  §  125. 

Special  Issue,  of,  not  made  by  pleadings,  §  309. 

Statement  on  appeal:   See  Statement. 

Submitting   controversy   without   action,   §§    1138,   1140. 

Verdict:    See  Verdict. 

Verdict,  how  declaied,  §  618. 

Verdict,  Informal,  proceedings  on,  §  619. 

Verdict,  sealed,  rendered  during  adjournment,  §  G17, 

Verdict  prevented,  retrial  of  cause,  §  616. 

View  by  jury  of  premises,  conduct  of,  §  610. 

View  by  jury  of  premises,  when  allowed,  §  GIO. 

TROVER,  action  for,  against  executor,  §  1584. 
Action  for  by  executor,  §  1583. 
Damages  for  cutting  and  carrying  away  trees,  §  733. 

TRUST  COMPANY,  limitation  of  actions  against,  §  348, 

TRUST:   See  Trustee. 

Action  Involving  validity   of  trust  under  will,  conclu- 
siveness of  determination,   §   738. 
Action   to   quiet  title  Involving   trust   under   will,   will 

admissible,  §  788. 
In  realty,  writing,  necessity  of,  §§  1971,  1972. 
Jurisdiction  over  continues  after  distribution,  §  1699. 
Parties  in  suit  to  establish,  §  381. 

TRUSTEE:   See  Trusts. 

Account,  decree  settling  conclusive  if  affirmed  on  ap- 
peal, §  1701. 

Account,  settlement  of  after  distribution,  §  1099. 

Acocunting  after  distribution,  procedure  for,   §  1699. 

Accounting  by  trustee  under  will,  §  1G99. 

Accounting  by  trustee  under  will,  citation,  §  1699. 

Accounting  by  trustee  under  will,  notice  of,  §  1699. 

Accounting  by  trustee  under  will,  procedure  In,  §  1699, 

Appeal  by,  dispensing  with  bond,  §  946. 

Appeal  from  settlement  of  account  of,  §  1701. 

Beneficiaries,  may  sue  without  joining,  §  369. 

Compensation,  apportionment  among  trustees,  §  1700. 

Compensation  of,  on  settling  account  of,  after  distri- 
bution, §§  1699,  1700. 

Corporation  as,  qualification,  oath,  bond,  §  1348. 

Corporation   may  act  as,  §  1348. 

Corporation,  statute  authorizing  to  act  as,  p.  7G8. 

Corporation,  deposit  of  funds  with  and  reduction  of 
bonds,  pp.  769,  770,  §§  2,  4,  Stats. 


1060  TRUSTEE— UNDERTAKING. 

Costs  in  action  by  and  against,  §  1031. 

Declination  to  act,  proceedings  on,   §§  1702,  1703. 

Deposit  in  court  by,  of  subject  of  litigation,  §  572. 

Express  trust,  of,  who  is,  §  369. 

Joinder  of  claims  against,  §  427. 

Presumption  that  he  has  conveyed  property,  §  1963. 

Resignation,  duty  of  court  before  acceptance,  §  1702. 

Resignation  or  vacancy.  Jurisdiction  in  cases  of,  §  1703. 

Vacancy   or   resignation,   appointing   on    application   of 
Interested  party,  §  1702. 

Vacancy,  appointment  to  fill,  notice  to  Interested  par- 
ties, §  1702. 

Vacancy,    undertaking    of    trustee     appointed     to     fill, 
§  1702. 
Vacancy  In  trusteeship,  how  filled,  §§  1702,  1703. 

TULARE  COUNTY,  acts  Increasing  and  lowering  number 
of  superior  judges,  p.  766. 

TYPEWRITERS  exempt  from   execution,  §   G90. 

TYPEWRITING,  writing  includes,  §  17. 

UNDERTAKING:    See  Bond;   Surety. 
Appeal  to  superior  court,  on,  §  978. 
Appeals,  §§  940-949.     See  Appeals. 
Arrest  of  defendant,  on,  §§  482,  487. 
Arrest  of  defendant  in  justice's  court,  for,  §  862. 
Attachment,  in,  §§  539,  540,  554. 
Attachment  in  justice's  court,  on,  §  SG7. 
Attachment  of  vessel,  on,  §  818. 
Attachment  of  vessel,  on  discharge  of,  §  822. 
Commissioner   or   elisor   to   sell   encumbered    property, 

§  726. 
Costs  by  nonresident  or  foreign  corporation,  for,  §  1036. 
Costs  in  libel  and  slander,  to  cover,  p.  778,  Slats. 
Court  commissioners,  power  to  take  and  approve,  §  259. 
Elisor,  of,  to  sell  Incumbered  property,  §  72G. 
Guardian,  of,  receiving  proceeds  of  partition  sale,  §  794. 
Injunction,  upon,  §  529. 
Jurisdiction  of  justice  In  action  on,  §  112. 
Limitation  In  action  on,  §  340. 
Municipality  need  not  give,  §  1058. 
Officer  need  not  give,  §  1058. 
Quo  warranto,  in,  §  810. 
Receiver  of,  §  567. 
Receiver,  on  appointment  of,  §  5CG. 


UNDERTAKING— USURPATION,    ETC.  10<1 

Replevin,  in,  §§  512,  514,  519,  520. 

Requisites  of,  in  general,  §  1057. 

Several  actions  on,  costs  and  disbursements  in  case  of, 

§  1023. 
State,  county,  city,  town  or  officer  need  not  g^ive,  §  1058. 
Supplementary  proceedings,  in,  §  715. 
Time  for  filing,  extension  of  time  for,   §  1054. 
Trustee    appointed     to    fill     vacancy,     undertaking    of, 

§  1702. 

UNITED  STATES,  documents  of,  how  proved,  §  1918. 
Includes  what,   §   17. 
Judicial  record  of,  how  proved,  §  1905. 
Public  writings,  effect  of  and  how  proved.  §  1924. 

UNLAWFUL  DETAINER,  §§  1159-1179.  See  Forcible  En- 
try and  Detainer. 

UNMARRIED  FEMALE  may  recover  for  own  seduction, 
§  374. 

USAGE,  evidence  of,  §  1870. 

Local,  governs  actions  concerning  mining  claim,  §  748. 

USURPATION  OF  OFFICE  AND  FRANCHISE,  appeal 
from  judgment  that  one  is  usurping  office  does  not 
stay,  §  949. 

Arrest  of  defendant,  §  804. 

Attorney  general,  proceedings  by,   §§  803-810. 

Complaint  in,  §  804. 

Complaint,  what  may  state,  §  804. 

Complaint  may  set  forth  name  of  person  entitled, 
§  804. 

Costs,  when  defendant  liable  for,  §  809. 

Damages  may  be  recovered  by  claimant,  §  807, 

Fine  for,  §  809. 

Information,  §  803. 

Judgment,  where  defendant  guilty,  §  809. 

Judgment  in  favor  of  claimant  entitles  him  to  office, 
§  806. 

Judgment  may  determine  rights  of  either  or  both  par- 
ties, §  805. 

Judgment  may  determine  rights  of  Incumbent  and 
claimant,  §  805. 

Oath  and  bond  of  claimant  on  taking  office,  §  806. 

Parties,  §  808. 

Proceeedings  when   several  claimants,   §   808. 


1002  USURPATION.    ETC.— VERDICT. 

Scire  facias  abolished,  §  802. 
Undertaking  in  action  for,  §  810. 

VACANCY,  judge's  office,  effect  of,  §  184. 
Justice's  office,   in,   §   915. 
Justice's  office,  how  filled,   §  111. 
Proceedings  in  court  not  affected  by,  §  184. 
Superior  judgeship,   vacancy   in,  §   70. 
Supreme  judgeship,  vacancy  in,  §  42. 

VACATION,  arbitrator's  award  of,  §  1287. 
Arrest,  vacation  of,  §  503. 
Arrest,  vacation  of,  order  for,  §  504. 
Judgment,  of,  grounds  for,  §  CG3.     See  Judgments. 
Order  refused  by  another  judge,  §  183. 
Superior  court  may  vacate  its  judgment,  in  what  cases, 
§  663. 

VARIANCE.     Failure   of   proof   and    not    variance,    when, 
§  471. 
Immaterial,  how  provided  for,  §  470. 
Material,  how  provided  for,  §  4C9. 
Material,  when  only  deemed  to  be,  §  469. 
Variance   between    allegation    and     proof,    amendment, 

§  4C9. 
What  not  deemed  to  be,  §  471. 

VENDOR  AND  VENDEE.  Guardian  decreed  to  make  con- 
veyance where  vendor  becomes  incompetent, 
§  1810. 

VENUE:   See  Place  of  Trial. 

VERDICT,  amount  of    recovery,    jury    mast    find,    when, 

§§  C26.  627. 
Chance,  new  trial.  §  657. 
Counterclaim  set  up,  §  626. 
Courts  open  any  day  to  receive,  §  134. 
Death  after,  judgment  on,  §  669. 
Declared  how.  §  618. 
Directing   findings    upon    particular   questions   of   fact, 

§   625. 
Entry,  manner  of,  §   628. 
Excepted  to,   deemed,     §   647. 
Exception  to  form  of,   §   648. 

Failure  to  enter  judgment  on  dismissal,  §  581,  subd.  6. 
Findings,  special,  filing  and  entry,  §  625. 


VERDICT— VERIFICATION.  1083 

Findings  upon  particular  questions  of  fact,  directed  on 
request,   §    G25. 

Forcible  entry  and  detainer,  in,  §  1174. 

General,  defined,   §   G24. 

General,  findings  upon  particular  questions  of  fact  di- 
rected upon  request,  §  625. 

General  controlled  by  special  if  inconsistent,  §  625. 

General,  when  may  be  rendered,  §  025. 

In  actions  to  recover  realty,  §  740. 

In  proceedings  against  joint  debtors,   §  994. 

In  proceedings  to  contest  probate,  §  1314. 

Interest  on  to  be  included  in  judgment,  §  1035. 

Informal  or  incorrect,  proceedings  in  case  of,  §  619. 

Is  general  or  special,  §   624. 

Judgment  not  supported  by,  notice  of  motion  to  set 
aside  and  hearing  of,  §  CC3%. 

Judgment  not  supported  by  verdict,  setting  aside, 
§   663. 

Judgment  on,  when  to  be  entered,  §  664. 

Judgment-roll,   as   part   of,   §    670. 

Jury,  discharge  of  before  retrial,  §  616. 

Justice's  court,  in,   §  891. 

Polling  jury,  §  618. 

Prevented,  retrial  of  cause,  §  616. 

Replevin,  in,   §   627. 

Review   of,  on  appeal,  §  956. 

Sealed,  rendered  during  recess  or  adjournment,  §  C17. 

Special,  controls  general  if  inconsistent,  §  625. 

Special,  court  to  direct  on  request,  §  625. 

Special,  defined,  §  624. 

Special,  entry  of,   §  628. 

Special,  filing  and  entry  of,  §  625. 

Special,  iBconsistent  with  general,  controls,  §  625. 

Special,  judgment  rendered  in.  to  be  entered,  §  628. 

Special,  must  be  filed  and  entered,  §  625. 

Special,  order  reserving  case  to  be  entered,  §  628. 

Special,  requisites  of.  §  624. 

Special,  vacation  of  judgment  entered  on,  §  663. 

Special,  when  may  be  rendered,  §  625. 

Three-fourths  jury  may  render,  §§  613,  618. 

Vacation  of  on  court's  own  motion,  grounds  for,  §  662. 

Will  contest.  In,  §   1314. 

Written,  must  be,   §   618. 

VERIFICATION,  accusation  against  attorney  to  be  verified, 
§  291. 
Affidavit  may  be  used  for,  §  2009. 
Answer,  §  437. 


•WM  VERIFICATION— WAIVER. 

Application  for  dissolution  of  corporation,  veriftcatlon, 
§  1229. 

C!omplaint  in  action  against  vessel  to  be  verified,  §  815. 

Election  contest,  statement  to  be  verified,  §  1115. 

Genuineness  and  execution  of  instrument  in  complaint, 
when  admitted,   §  447. 

Genuineness  and  execution  of  written  instrument  in 
answer  admitted,  unless  denied  under  oatn, 
§  448. 

Genuineness  and  execution  of  instrument  are  not  ad- 
mitted,  when,   §  449. 

Injunction,  complaint  for  must  be  verified,  §  527. 

Opposition  to  application  to  become  sole  trader,  §  1815. 

Petition  for  sale  by  guardian  to  be  verified,  §  1781. 

Petition  for  sale  of  real  estate  of  decedent,  §  1537. 

Petition  to  perpetuate  testimony  to  be  verified,  §  2084. 

Pleadings,  verification   of,   §   446. 

Return  of  sales  to  be  verified,  §  lo/5. 

Statement  in  election  contest,  verification  of,  S  1115. 

VESSELS,  §§  813-827.     See  Shipping. 

VESTED  RIGHTS  not  affected  by  code,  fi  & 

VIEW  OF  PREMISES  by  jury,  §  610. 

WAGES,  exemption  of  from  execution,  {  $90. 
Lien  for:  See  Lien. 
Preferred  claims,  §§  1204-1207. 
Seamen's,  §§  825,  826.     See  Shipping. 

WAIVER.     Appeal,  deposit  or  bond  on,  waiver  of,  §  948. 
Demurrer  not  waived  by  filing  answer  at  same  time, 

§  472. 
Disqualification  of  judges,  waiver  of,  §  170. 
Findings,  waiver  of,   §  634. 
Jury,  of,  §§  592,  631. 

Jury  in  justice's  court,  of,  how  affected,  §  883. 
Mechanics'  liens,  of,   §  1201. 
Objections  to  complaint,  when  waived,  §  434. 
Service  on  waru,  guardian  may  waive,  §  1722, 
Summons,  waiver  of  issuance  of,  §  406. 
Summons  in  justice's  court,  of,  §  841. 
Sureties,  waiver  by  failure  to  object,  §5  513,  533. 
Undertaking  on  appeal,  of,  §  940. 
Undertaking  or  deposit  on  appeal,  of,  §  948. 


WAR— WILL.  "»» 

WAR  as  cause  for  removal  of  court,  §  142. 

Limitation  of  actions,  how  affected  by  war,  §  354. 

WARRANT  for  salary  of  justice  of  peace,  S  103. 

WASTE,  administrator,  removing  for,  §  1436. 

Civil  ofRcer  to  inform  public  administrator  of,  §  1731. 
Catting  or  injuring  trees,  damages  for,  §  733. 
Damages  for,   §§   732-735. 

Decedent,  of,  action  for,  against  executor,  §   1584. 
Enjoining  executors  pending  application  to  prove   lost 

will,  §  1341. 
Enjoining  pending  foreclosure,   §   745. 
Eviction,  after,  contempt,  §  1210. 
Execution  sale,  injury  done  after  and  before  delivery, 

§  746. 
Ehcecutor,  action  for,  by,  §  1583. 
Guardians,  by,  §  732. 
Joint  tenants,  by,  §  732. 
Restraining,   during   time   to    redeem    from    execution, 

§  706. 
Rights  where  tenant  commit,  §  1161. 
Security  against,  on  appeal,  §§  945,  978. 
Tenants,  by,  §  732. 
Tenant  in  common,  by,  §  732. 
What  is  not,  §  706. 

WATERS  as  boundaries,  5  2077. 

Condemnation     of,      damages,     rule     for    ascertaining, 

§  1248. 
Eminent  domain,  §  1238. 
Injunction     respecting,     vacation     or    modification    of, 

§  532. 
Injunction  to  prevent  diversion,  refusal  of,  bond,  §  530. 
Offense  on   lake  or   stream   in   several   counties,   venue 

of  action,  §  393. 

WELLS,   implements   for     putting    down,    exemption    of, 
§   690. 

WHARFAGE,  vessels  liable  for,  §  813. 

WILL,    tenancy    at,    to    be    terminated    by    notice,    J    1161, 
subd.  4. 


^<*6  WILl^,    I,    II.   III. 

WILLS. 

\.     Execution  of;  codicils. 
II.     Production   of. 

III.  Devises  and   legacies;     actions    involving  validity 

of  gift  under. 

IV.  Advancements. 

V.     Nuncupative  wills. 
VI.     Alteration  and   revocation. 
VII.     Probate  of. 

VIII.  Contest  before  probate. 

IX.  Contests  after  probate. 

X.  Probate   of   foreign    wills. 

XI.  Probate  of  lost  or  destroyed  wills. 

XII.  Evidence  affecting. 

XIII.  Appeals  in  probate  proceedings. 
Testamentary  guardian:     See   Guardian, 

I.  Execution   of;    codicils. 
Codicil,  will  includes,  §  17. 

To  be  executed  according  to  legal  formalities,  §  1969. 
To  be  in  writing,  §  1969. 

II.  Production  of. 

Custodian   to  deliver  to   superior  court,   §   1298. 

Imprisonment  for  failure  to  produce,  §  1302. 

Order  to  person  in  possession  of  to  produce,  §  1302. 

Penalty  for  nondelivery  of  to  probate  court,  §  1298. 

Probate  judge  at  any  time  may  issue  orders  to  enforce 
production  of  wills,  §  1305. 

Production  of,  when  in  hands  of  third  person,  impris- 
onment to  enforce,  §  1302. 

III.  Devises  and  legacies;   actions  involving  validity  of 

gift  under. 

Action  involving  validity  of  gift  or  trust  under,  con- 
clusiveness of   determination,   §   739. 

Action  to  quiet  title  involving  gift  or  trust  under,  will 
admissible.  §   738. 

Devises,  liability  for  debts,  §  1563. 

Devise  or  legacy,  petition  for,  on  giving  bond,  §  1658. 

Devise,  specific,  how  far  exempt,  §  1563. 


WILLS.    Til.    IV.    V,    VI,    VII.  Wfi7 

Devises,  specific,  liability  for  debts,  §  1563. 

Legacies,  liability  for  debts,  §  1563. 

Legacy,  need  not  be  paid  until  court  orders,  §  1646. 

Legacies,  order  for  payment  of,  §  1651. 

Legacy,  petition  for  on  giving  bond,  §  1658. 

Legacy,  specific,  how  far  exempt,  §  15G3. 

Legacies,  specific,  liability  for  debts,  §  1563. 

IV.     Advancements. 

Determination  as  to,  §  1686. 
Heirs,  advancements  to,  §  1686. 

V.     Nuncupative  wills. 

Appointment  of  executor  and  administrator,  procedure, 

§  1346. 
Contest  of,  procedure,  §  1346. 
How  admitted  to  probate,  §  1344. 
Manner  of  appointment  of  executors,  §  1346, 
Notice  of  probate,  §  1345. 
Petition  for  probate,  requisites  of,  §  1344. 
Reducing  to  writing  and  filing,  §   1345. 
Time  for  probate,  §§  1344,  1345. 
Who  may  petition  for  probate  of,  §  1299. 

VI.  Alteration   and   revocation. 
Alteration  of,  how  effected,  §  1970. 
Revoked,  how,  §  1970. 

VII.  Probate    of. 

Certificate  of,  seal,  §  153. 

Conclusive  after  one  year,  5  1333. 

Depositions,     taking     where     witnesses     nonresidents, 

§  1308. 
In  what  county  to  be  proved,  §  1294. 
Judge  disqualified  to  act,  in  what  cases,  §  1430. 
Judge  disqualified  to  act,   transfer  of  proceedings  and 

their  return.  §§  1431-1433. 
Judge  may  at  any  time  compel  attendance  of  witnesses, 

§   1305. 
Jurisdiction  over,  probate  of,  §  1294. 
Mailing  copies  of  notices  of   time   appointed   to  heirs, 

§  1304. 
Mailing  of  notices  of  petition,  notices  how  addressed, 

§  1304. 


mt  WILLS,  \ai,  VTii. 

Mailing  of  notices  of  time  appointed  for  hearing  peti- 
tion, time  of,  §  1304. 

Nonappointment  of  attorney  by  court  does  not  in- 
validate, §  1307. 

Olographic  will,  how  proved,  §  1309. 

One  witness  sufficient  if  no  contest,  when,  §  1308, 

Petition  for,  devisee  may,  §  1299. 

Petition  for  probate,  who  may  file,   §   1299. 

Petition  for  probate,  contents  of,  §  1300. 

Petition  for  probate,  effect  of  defects  in,  §  1300. 

Petition  for  probate,  failure  of  executor  to,  forfeiture 
of  right  to  letters,  §  1301. 

Petition  for  probate  must  show  what,  §  1300. 

Petition  for  probate,  notice  of,  how  given,  §  1303. 

Petition  for  probate,  notice  of,  how  served  on  execu- 
tors,   §    1304. 

Petition  for  probate,  notice  of,  proof  of,  §§  1304,  1306. 

Petition  for  probate,  notice  of,  publication  or  posting 
of,  §  1303. 

Petition  for,  clerk  to  set  for  hearing,  §  1303. 

Petition  for,  hearing  of,  time  for,  §  1303. 

Petition  for,  mailing  notices  to  executors,  §  1304. 

Petition  for,  personal  service  of  notice  equivalent  to 
mailing,   §  1304. 

Probate,  petition  for,  personal  service  of  notice,  time 
for,  §  1304. 

Photographic  copy,  presenting  to  nonresident  wit- 
ness,   §    1308. 

Proceedings  where  witness  not  present  and  deposition 
cannot  be  obtained,  §  1308. 

Revocation,  probate,  when  revoked,  §  1330. 

Revocation  of  prior  letters,  §  1423. 

Revocation  of  probate,  jury  trial,  §  1330. 

Revocation  of  probate,  effect  of,  §  1331. 

Revocation,  effect  on  powers  and  liabilities  of  execu- 
tors or  administrators,  §  1331. 

VIII.     Contest  before   probate. 

Absence  of  subscribing  witnesses  to  be  accounted  for 

§  1315. 
All   subscribing   witnesses    in   county   to   be   examined 

§  1315. 
All  testimony  to  be  filed  by  clork.  §  1318. 
Anyone  interested  may  contest,  §  1307. 
By  attorney  appointed  by  court  as  a  bar,  §  1307. 


WILLS.    Vin,    IX,    X.  IOCS 

Certificate  of  proof  to  be  attached  to  will,  §  1317. 

Contestant  is  plaintiff,  §  1312. 

Demurrer,  proceedings  where  sustained  or  overruled, 
§   1312. 

Demurrer  to  opposition,  grounds  of,  §  1312. 

Impaneling  jury,  §  1313. 

Issues  when  tried  by  jury  and  when  by  court,  §  1312. 

Jury  trial,  mode  of,  §  1313. 

Judgment  to  be  entered  on  special  verdict,  §  1314. 

Judgment,  will  and  proofs  to  be  recorded,  §  1314. 

Jury  to  return  special  verdict,  §  1314. 

May  be  through  guardian  or  attorney,  §  1307. 

Of  nuncupative,  how  conducted,  §  1346. 

Proof  of  handwriting  of  testator  and  subscribing  wit- 
nesses, §  1315. 

Proof  of  subscribing  witnesses  to  be  reduced  to  writing, 
§  1314. 

Testimony  of  other  than  subscribing  witnesses  ad- 
missible to  prove  sanity  and  execution,  when, 
§  1315. 

Testimony  reduced  to  writing  and  signed,  admissibility 
in  subsequent  contests,  §  1316. 

Trial  by  court,  mode  of,  §  1315. 

Will  and  certificate  of  proof  to  be  filed  and  recorded, 
§  1318. 

Written  opposition,  service  of,  §  1312. 

Written  grounds  of  opposition  to  be  filed,  §  1312. 

IX.  Contest  after  probate. 
Annulment  of  pi-obate,  §§   1330,  1331. 
Citation  to  parties  interested,  §  1328. 
Costs,  who  to  pay,  §  1332. 
Hearing,  §  1329. 

Issues,  how  tried,  §  1229. 

Jury  trial,  §  1330. 

•Limitations,  §§  1327,  1333. 

Limitations,  effect  of  disabilities,  §  1333. 

May  be  made  witliin  year,  §  1327. 

Petition,  §  1327. 

Probate  annulled,  when,  §  1330. 

Proof  of  service  of  citation,  §  1329. 

Time  to  contest,  extension  in  case  of  disability,  §  1333. 

Trial  by  court,  §  1330. 

X.  Probate   of  foreign   wills. 
Admis.siou  of  to  probate,  §  1324. 
Hearing  proois  of  probate  of,  §  1324. 


1070  WILLS,   X,   XI,   XH,   XIIT-WITNKSSES. 

Letters  to  issue  on,  when,  §  1324. 

May  be  recorded  in  county  where  testator  left  property, 

§   1322. 
Notice  of  petition  for  letters,  §  1323. 
Petition  for  letters,  §  1323. 
Proceedings  on  production  of,  §  1323. 
To  be  recorded,  when  and  where,  §  1322. 

XI.  Probate  of  lost  or  destroyed  wills. 

Certificate  of  contents  to  be  filed  and  recorde-d,  §  1340. 
Destroyed   fraudulently   during  lifetime,   §   1339. 
Existence    at    time    of    testator's    death    to    be    proved, 

§  1339. 
Granting  letters,  §  1340. 
Must  be  pixjved  by  two  witnesses,  §  1339. 
Must  have  existed  at  time  of  death,  except  when,  §  1339. 
Proof  of  execution  and  validity  to  be  taken,  §  1338. 
Proof  of,  notice  to  persons  interested,  §§  1338,  1340. 
Proof  of,  testimony  to  be  reduced  to  writing,  §  1338. 
^Provisions  to  be  proved  by  two  witnesses,  §  1339. 
Provisions  of  to  be  certified  and  recorded,  §  1340. 
Restraining  executor  during  proceeding  to  prove,  §  1341. 
Testimony  to  be  reduced  to  writing  and  certified,  §  1340. 
Who  may  petition  for,  §  1299. 

XII.  Evidence    affecting. 

Evidence  of  instrument  itself  to  be  produced,  §  19G9. 
Olographic  will,  how  proved,  §  1309. 
Parol   evidence   affecting,   aidmissibility,   §   185G. 
Secondary  evidence  of  contents,  §  19C9. 

XIII.  Appeals  in  probate  proceedings. 

Appeal  lies  from  what  orders  respectin'g  will,  §  903. 

Order  admitting  or  refusing  admission  to  prot)ate 
appealable,  §  9C3. 

Orders  or  pidgment  relating  to  validity  of  will  appeal- 
able, §  9C3. 

WITNESSES:  Sec  Evidence;  Depositions. 

Absence  of,  postponement  of  trial  for,  §  595. 

Accomplice  as,  §  20G1. 

AfTirmation,  form  of,  §§  2C94,  2097. 

Aflirmation,  in  place  of  oath,  §  2097. 

Answer  questions,  bound  to,  §  20C5. 

Answer,  what  questions  need  not  answer.  §  2065. 


WITNESSES.  1071 

Answer    questions,   all    pertinent   questions     must    be 

answered,  §  20C4. 
Answer    questions,    must,    as   to    conviction    of    felony, 

§  20C5. 
Arbitration  proceedings,  at,  §   1284. 
Arrest  of,  disobeying  subpoena,  §  1993. 
Arrest,  failure  to  obey  subpoena,  issuance  of  warrant, 

§  1993. 
Arrest  of,  affidavit  that  he  Is  witness,  §  20C9. 
Arrest  of,  discharge,  §  2070. 
Arrest,  who  may  discharge,  §  2070. 
Arrest,  wrongful,  damages  for,   §   20GS. 
Arrest  of,  liability  of  officer  making,  §  20C9. 
Arrest  of,  liability  of  party  causing,   §  20G8. 
Arrest,  privilege  from,  §  20G7. 
Arrest,  warrant,  contents  of,  §  1994. 
Arrest,  warrant,  how  executed,  §  1994. 
Arrest,  warrant,  to  whom  directed,  §  1994. 
Arrest,  wrongful,  when  a  contempt  of  court,  §  2068. 
Attend,  bond  to,  §  2064. 

Attendance,  power  of  court  to  compel,  §  128. 
Attendance,  power  of  judicial  officer  to  compel,  §  177. 
Attendance  not   compelled  unless   within  thirty  miles, 

§  1989. 
Attendance,  lime  for,  §  1987. 
Attendance,  in  probate,  judge  may  compel  at  any  time, 

§  1305. 
Attorney  as,  §§  1881,  1882. 

Changing  place  of  trial  for  convenience  of,  §  397. 
Child  under  ten  as,  §  1880. 
Clergyman  as,  §  1881. 
Clerk  to  take  testimony,  when,  §*  10.51. 
Compelled  to  attend,  not,  unless  within   thirty  miles, 

§  1989. 
Compelled  to  testify  when  present,  §  1990. 
Compelling  to  produce  books  and  papers,  §  1000. 
Competency  of.  In  general,  §  1879. 
Competency,  who  not  competent,  §  1880. 
Contempt  by,  §  1209. 
Contempt  in  justice's  court,  §  906. 
Contradicting,  by  party  producing,   §  2049. 
Credibility  of,  evidence  to  show,  §  1870. 
Credibility  of,  may  be  attacked,  §  1879. 
Credibility,  greater  number  of  do  not  control,  §  2061. 
Cross-examination  defined,  §  2045. 
Cross-examination,  right  and  extent  of,  §  2048. 
Cross-examination,  when  may  begin,  §  2045. 


1071  WITNESSES. 

Cross-examination,  not  heard  unless  subject  to,  §  1846. 

Decedent,  who  may  not  testify  of  fact  occurring  during 
lifetime  of,  §  1880. 

Decedent's  estate,  examination  of  person  suspected  of 
embezzlln-g,  §  1460. 

Defined,  §  1878. 

Depositions,  §§  2019-2038.     See  Depositions. 

Deposition  of,  on  postponement  of  trial,  §  598. 

Detailing,  contempt,   §   1209. 

Direct  evidence  of  one  sutflcient,  §  1844. 

Direct  examination  defined,  §  2045. 

Disqualified  as  referee,  §  641. 

Docket  of  justice  of  peace  must  contain  names  of,  §  911. 

Election  contest,  enforcing  attendance  at,  §  1120. 

Examination,  court  must  control  mode  of,  §  2044. 

Examination,  oral,  defined,  §  2005. 

Examination  must  be  in  presence  of  persons  affected, 
§  1846. 

Examination,  protection  of  witness,  §  2066. 

ExEi  mi  nation,  use  of  affidavits  to  obtain,  §  2009. 

Examination  of  persons  suspected  of  embezzling  de- 
cedent's estate,  §  1400. 

Exclusion  of,  by  court,  §  125. 

Exclusion  of,   on  examination  of  others,  §   2043. 

Expert,  laws  of  other  states,  §  1902. 

Expert,  may  decipher  writing,  §  1863. 

Expert,  opinion  of.  In  general,  §  1870. 

False,  In  part,  §  2061. 

Fees  of,  §  1987. 

Foreign  country,  §§  2024-2028.     See  Depositions. 

Good  character,  evidence  of,  when  alloTved,   §   2053. 

Handwriting,  opinion  respecting,  §  1870. 

Husband  and  wife  as,  §§  1881,  1882. 

Impeachment  of,  by  party  producing,  §  2049. 

Impeachment  of,  limitation  on,  §§  2051,  2052. 

Impeachment  of,  manner  of,  §§  2051,  2052. 

Inspection  of  writing  shown  to,  §  2054. 

Interested  party  as,  §  1880. 

Interpreter,  contempt  by,  §  1884. 


WITNESSES.  1073 

Interpreter,  when  to  be  summoned  and  sworn,  §  18SJ. 
Judge  as,  §   1883. 
Juror  as,  §§  602,  1883. 

Juror,  trial   of  challenge,  witnesses,   §   603. 
Leading  question  defined,  §  2046. 
Leading  questions  on  cross-examination,  §   2048. 
Leading  questions  on   direct  examination,   whether  al- 
lowed, §  204G. 
Lunatic  as,  §  1880. 

Memorandum,  refreshing  memory,   §  2047. 
Memorandum,  right  to  testify  from,  §  2047. 
Modes  of  taking  testimony,   §  2002. 
Oath,  affirmation  in  place  of,  §  2097. 
Oath  or  affirmation,  only  heard  upon,  §  1846. 
Oath  of,  form,   §   2094. 
Oath  of,  varying  form  of,  §§  2095,  2096. 
Officer  as,  §   1881. 

On  trial  of  challenge  of  Juror,  §  003. 
One  person  not  affected  by  act  of  another,  §  1848. 
One  sufficient,  §  1844. 
Opinions,  in  general,  §  1870. 
Opinion  of  subscribing  witness,  §  1870. 
Oral  examination  defined,  §  2005. 
Order  of  proof,  how  regulated,  §  2042. 
Other  than  subscribing,  may  testify  to  writing,  §  194L 
Party  as,  §§    1879,   1880. 
Party,   interested,    as,    §    1880. 
Perpetuating  testimony,  §§  2083-2089. 
Personal  knowledge,  confined  to,  §  1845. 
Physician  or  surgeon  as,   §   1881. 
Power  of  court  to  compel  attendance,  §  128. 
Power  of  judicial  officer  to  compel  atttendance  of,  §  177. 
Presence  of  person  affected  necessary,  §  1846. 
Presumed  to   speak  truth,   §   1847. 
Presumption   that  witness  speaks   truth,  how  repellefl, 

§   1847. 
Prisoner,  deposition  of,  §§  1995,  1997. 
Priest  as,  §  1881. 

Prisoner,  how  brought  In  as,  §  1995. 
Code  civil  Proc— 68 


WITNESSES. 

Prisoner,  on  whose  motion  produced,  §  1996. 

Prisoner  as,  how  examined,  §  1997. 

Privilege  of,  §  20G5. 

Privileged  communications,  in  general,  §  1880. 

Protection  of,  in  general,  §  20CG. 

Public   officer,    as,    §    1881. 

Recalling,  discretion  of  court,  §  2050. 

Re-examination  of,  §  2050. 

Referee,  disqualified  as,  §  641, 

Refreshing  memory,   §  2047. 

Refreshing  memory,  manner  of,   §  2047. 

refusal  to  answer  or  be  sworn  a  contempt,  §  1209. 

Relations  which  disqualify,   §   1881. 

Religious  belief  does  not  disqualify,  §   1879. 

Subpoena,  disobedience  to,  forfeiture  for,  §  1992. 

Subpoena,  disobedience  of,  a  contempt,  §  1209. 

Suljpoena,  disobedience  of,  damages  for,  §  1992. 

Subpoena,   disobedience   of,    striking   out    complaint   or 

answer,  §  1991. 
Subpoena,  disobedience  to,  how  punished,  §  1991. 
Subpoena,  for  what  issued,  §  19S6. 
Subpoena,  how  issued,  §  198G. 
Subpoena,  how  served,   §   1987. 

Subpoena,  how  served  on  concealed  witness,  §  1988. 
Subpoena  for,  defined,   §   1985. 

Subpoena  may  require  production  of  books,  etc.,  §  1985. 
Subpoena  person  present  in  court  compelled  to  testify 

without,   §   1990. 
Subpoena,  to  be  served  so  as  to  give  time  for  atttend- 

ance,  §  1987. 
Subpoena    to,  deposition  to  be  used  out  of  state,  §§  203G, 

2037. 
Subscribing,  defined,   §  1935. 
Subscribing,  mark,  §  17. 

Subscribing,  opinion  of  as  to  sanity  of  testator,  §  1870. 
Subscribing,     other     witness    may     testify    to    writing 

§  1941. 
Subscribing,  proof  of  will  by  one,  §  1308. 


WITNESSES— WORDS   AND    PHRASES.  IVlo 

Subscribing,  proof  of  writing  by,  §  1940. 

Supplementary  proceedings,  at,   §  718. 

Swearing,  manner  of,  §  2096. 

Testimony  of:  See  Evidence. 

Warrant  to  bring  in,  §  1993. 

Warrant  to  bring  in,  contents  of,  §  1994. 

Writing  shown  to,  may  be  inspected,  §  2054. 

Who  competent,  in  general,  §  1879. 

Who  not  competent  as,   §   1880. 

Who  not  excluded  as,  §  1879. 

WORDS  AND  PHRASES.     Abbreviations,  §  186. 
"Action"  includes  special  proceedings,  §  363. 
Affinity,  §  17. 
Agreement,    §    1856. 
Construed    according    to    context    and    approved    usage, 

§  16. 
County  includes  city  and  county,  §  17. 
Depose,  §  17. 

Joint  authority,  words  giving,   §  15. 
Masculine  gender,   §    17. 
Month,  §  17. 
Oath,  §  17. 
Person,  §  17. 
Personal  property,  §  17. 
Plural  number,  words  in,   §   17. 
Present  tense,  words  in,  §  17. 
Process,  §  17. 
Property,  §  17. 
Real  property,  §  17. 
Seal,  §  14. 
Section,  §  17. 
Signature,  §  17. 

Singular  number,  words  in,  §  17. 
State,  §  17. 
Subscription,    §   17. 
Technical  words  and  phrases,  §  16. 
Testify,  §  17. 
Typewriting,  writing  includes,   §  17. 


1076  WORDS    AND    PliRAfJliS. 

United  States.   §  17. 
Will,  §  17. 
Writ,  §  17, 
Writing,  §   17. 

WRITINGS:   See  Written  Instruments. 
Includes  what,  §  17. 

WRITS,  defined,  §  17. 

Power  of  judges  to  grant  and  hear  at  chambers,  §§  165, 

1C6. 
Seal,  necessity  of,  §  153. 
Service  in  case  of  nonresident,  §  1015. 
Superior  judge,  power  of,  to  issue,  §  76. 
Superior  court  may  issue  what  writs,  §  76. 
Supreme  court,  power  of,  to  issue,  §  51. 
Telegraph,  service  by,  §  1017. 

WRITS  OF  ASSISTANCE:   See  Assistance. 

V/RITS  OF   POSSESSION:   See  Assistance. 
Condemnation  proceedings,  §  1254. 
In  suit  to  determine  adverse  claim,  §  380. 

WRITS  OF  PROHIBITION,  §§  1102-1105.     See  Prohibition. 

WRITS  OF  REVIEW,  §§  1067-1097.     See  Review,  Writ  of. 

WRITS  OF  SCIRE  FACIAS,  abolished,  §  802. 

WRITTEN  INSTRUMENTS,  acknowledgment  of,  §  1948. 
Acknowledgment  proves  writing,  §  1948. 
Adverse  possession  under  written  instruments,   §§  322, 

323. 
Alteration,  burden  of  explaining,  §  1982. 
Ancient,  presumption  in  regard  to,  §  19G3. 
Ancient  writings,   comparison,    how     made   in   case   of, 

§  1945. 
Called  for  and  inspected  may  be  withheld,  §  1931*. 
Certificate  to,  form  of  and  how  executed,  §  1923. 
Construe,  court  must,  §  2102. 
Contents  of,  evidence  as  to,  §  1870. 


WRITTEN    INSTRUME?.ITS.  Wn 

Contents  proved,  how,  §  1855. 

Copy  of  instrument  is  secondaiy  evidence,  §  1830. 

Custody  of  adverse  party,  in,  notice  to  produce,  §  1938. 

Decedent,  entries  by,  admissibility,  §  194G. 

Decedent,  writings  of,  when  admissible,  §  1946. 

Deciphering,  experts,  §  1863. 

Destroyed,  pro^'ng  contents,  §  1855. 

Entries  copied  from  one  book  in  another,  when  deemed 
originals,    §   1947. 

Evidence  of  execution  not  necessary,  when,  §  liJ42. 

Evidence,  parol,  affecting,  §  1856. 

Executed,  how,   §   1933. 

Execution,  admission  of,  §  1942. 

Execution,  how  proved,  §§  1940-1945. 

Execution  of,  defined,  §  1933. 

Foreign  language,  experts  may  testify  as  to  meaning, 
§  1863. 

General  acceptation,  terms  to  be  construed  by,  §  1861. 

How  proved  in  general,  §  1940. 

Handwriting,  how  proved,  §§  1943,  1944. 

Inspected,  writing  shown  to  witness  may  be,  §  2054. 

Inspection  of,  demand  for,  §  449. 

Kinds  of,  public  and  private,  §  1887. 

Lex  loci,  controls  interpretation,  §  1857. 

Limitation  of  actions  on,  §  337. 

Lost  or  destroyed,  proving  contents,  §  1855. 

Notice  to  produce:  See  Evidence,  VII. 

Notice  to  produce,  when  not  necessary,  §  1938. 

Original  must  be  produced,  §  1937. 

Offer  in,  to  pay  equivalent  to  tender,  §  2074. 

Official  documents,  manner  of  proving,  §  1918. 

Other  witnesses  than  subscribing  may  testify  to,  §  1941. 

Over  thirty  years,  evidence  of  handwriting  by  com- 
parison, §  1945. 

Over  thirty  years,  presumed  genuine,  §  1963: 

Parol  evidence  of  contents,  §  1870. 

Parol  evidence  to  explain  ambiguities,  §  1856, 

Part  in  evidence  all  may  be  proved,  §  1S54. 


1078  WRITTEN    INSTRUMENTS. 

Pleading,    genuineness    of,    how    admitted    or    conlro 

verted,  §§  447-449. 
Pleading,  in  justice's  court,  §§  886,  887. 
Possession  of  writing  by  adverse  party.  §  1855. 
Possession    of    by    adverse    party,    notice    to    produce, 

§  1938. 
Possession  of  officer,  writing  in,  §  1855. 

Presumption  tliat  it  is -truly  dated,  §  19G3. 

Printed  partly,  writing  controls,   §   18C2. 

Private,  are  what,  §  1889. 

Private,  certificate  of  acknowledgment  prima  facie  evi- 
dence of  execution,  §  1948. 

Private,  public  record  of,  how  proved,  §§  1894,  1919. 

Private,  sealed  and  unsealed,  §  1929. 

Private,   deemed   whole   agreement,   §   1856. 

Proof  of,  §  1941. 

Proved  by  witness,  must  be  read  before  his  testimony 
closed,  §  2054. 

Public,  books,  etc.,  entries  in,  §  1920. 

Public,  certificate,  what  it  must  state,  §  1923. 

Public,  certified  copies  of  must  be  supplied,  §  1893. 

Public,  citizen's  right  to  inspect  and  take  copy,  §  1892. 

Public,  custodian  of  bound  to  give  certified  copies, 
§  1893. 

Public,  defined,  §  1888. 

Public,  kinds  of,  §  1S94. 

Public,  officer  to  give  copy  of,  §  1893. 

Public  and  private,  §  1887. 

Public,  are  what,  §  1888. 

Public,  classes  of  judicial  records,  §  1894. 

Public,  classes  of,  laws,-  §  1894. 

Public,  classes  of,  ofFicial  documents,  §  1894. 

Public,  classes  of,  public  records  of  private  writings, 
§  1894. 

Public,  inspection  of  by  citizens,  §  1892. 
Public,  laws,   statutes,   etc.,    §§    1895-1903. 
Public,  official  documents,  proof  of,  §  1918. 
Public,  of  territories,  effect  of  and  how  proved,  §  1924. 
Public,    of   United    States,    elTect  of   and    how   proved, 
§  1924. 


WRITTEN    INSTRUMENTS— YUBA    COUNTY.  10T3 

Public,    of    United    States    or    territory,    how    proved, 

§  1924. 
Public,    state    or    county,    certified     copy     admissible, 

§  1901. 
Seal  makes  no  difference,  §  1932. 
Sealed  may  be  abolished  by  unsealed,  §  1932. 
Secondary,  copy  of  instrument  is,  §  1830. 
Shown    to    witness,    may    be    Inspected    by     opponent, 

§  2054. 
Surrounding  circumstances  admissible,   §§   1856,   1860. 
Written  words  control  printed,  §  1862. 

WRONGFUL   DEATH,  damages  for,  §  377. 

Guardian  may  sue  for  death  of  ward,  §  376. 

Heirs  may  sue  for,  §  377. 

Limitation  of  action  for,  §  339. 

Parent  may  sue  for  death  of  minor,  §  376. 

Representatives,  when  may  sue  for,  §  377. 

Who  may  be  sued  for,  §§  37G,  377. 

WRONGS.     Definition  of  injury  to  person,  §  29. 
Definition  of  injury  to  property,  §  28. 
Joinder  of  actions  for,  §  427. 
Kinds  of,  §  27. 

YUBA  COUNTY.     One  superior  judge  for  Yuba  and  Siittcr 
counties,  §  G5. 
Separate  judges  for  Sutter  and  Yuba  counties,  p.  7G6, 
Stats. 


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